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THE LIBRARY 

OF 

THE UNIVERSITY 

OF CALIFORNIA 

LOS ANGELES 

SCHOOL OF LAW 



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BURROW'S REPORTS. Reports of cases argued and determined 
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A 



CRUISE'S DIGEST. A Digest of the Laws of England respecting 
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Huntington, Esq., Counsellor at Law. Six volumes bound in 
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HOVENDON ON FRAUDS. A General Treatise on the Princi- 
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Prevention aud Remedial Correction of Fraud with numerous in- 
cidental notices of Collateral Points, both of Law and Equity. By 
John Eyken Hnvendon, Esq. of Gray's Inn, Barrister at Law. 
First American Edition, with notes and references to American 
Decisions, by Thomas Huntington, Esq. Counsellor at Law. Two 
volumes bound in one. 

GOULD'S PLEADING. A Treatise on the Principles of Plead- 
ing in Civil Actions, by James Gould. Second Edition, revised 
and corrected by the author. One volume. 

Extract of a letter from Chief Justice Marshall, dated, 

Richmond, Dec. 3rd, 1832, 

I have read the work through with advantage to myself, and with some surprise at 
finding that a subject which has employed so many pens, should still admit of being pre- 
sented in a form that may make the book an aumiiBitiun certainly to the Law Student, 
and indeed to the profession. You have well arranged the matter belonging to the subject, 
and have succeeded in your design of presenting it, " as a system of consistent and 
rational principles, adapted with the utmost precision to the administration of justice, 
according to uniform rules." 

By showing the reason of the rule plainly, the rule itself becomes more intelligible 
to the student, and will more certainly adhere to his memory. 

Allow me to repeat my thanks for the gratification afforded rae by the perusal of 
your work, and to assure you that I amv/ith very great respect, 

Your obliged and obedient servant, 

J. MARSHALL. 



Extract of a letter from Chief Justice Spencer, dated, 

ALB.4.NY,Dec. 27th, 1832. 

If my opinion is entitled to any consideration, it is, that you have given to the pro- 
fession a work evidently useful ; and, I may add, have supplied what was wanting, — a 
logical and scientific treatise on a most essential part of legal science. It has always 
been my opinion, that no man could be an accomplished lawyer unless he was thoroughly 
imbued with the learning of Pleading. 

With sentiments of high esteem and respect, 

Yours sincerely, 

A. SPENCER. 

PUER'S JURISPRUDENCE. Outlines of the Constitutional Ju- 
risprudence of the United States, designed as a Text Book for 
Lectures and popular use, by William Alexander Duer, L. L. D., 
President of Columbia College in the city of New-York. One 
volume, 12mo. 

COMYN ON CONTRACTS. The Law of Contracts and Pro- 
misesupon various subjects, and with particular persons, as settled 



in the action of assumpsit ; in three parts, by Samuel Comyn, Esq. 
of the Middle Temple, Barrister at Law. Third American from 
the last London Edition, with notes and references to American 
authorities, by Thomas Huntington, Esq. Counsellor at Law. One 
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STARKIE ON SLANDER. A Treatise on the Law of Slander, 
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Rules which regulate Intellectual Communications affecting the 
character of individuals and the interest of the public. With a 
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Informations, Indictments, Attachments for Contempts, &c. con- 
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Inn, Barrister at Law. With notes and references to American 
Decisions. By Thomas Huntington, Esq, Counsellor at Law. One 
volume. 

FOUBLANQUE ON EQUITY. A Treatise on Equity, with 
notes and references, by Johji FotiManque, Esq., Barrister at 
Law. Fccurth American Edition, with additional notes and refe- 
rences to American Chancery Decisions. By Anthony Laussat, 
Esq. of the Philadelphia Bar. One volume. 

ATKYNS' REPORTS. Reports of cases argued and determined 
in the High Court of Chancery, in the time of Lord Chancellor 
Hardwicke, by John Tracey Atkyns, of Lincoln's-Inn, Baron of the 
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MERIVALE'S REPORTS. Reports of cases argued and deter- 
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STARKIE'S REPORTS. Reports of cases determined at Nisi 
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REEVE ON DESCENTS. A Treatise on the iaw of Descents 
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CHITTY'S BLACKSTONE ; Commentaries on the Laws of En- 
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CHITTY ON BILLS. A Practical Treatise on Bills of Exchange, 
Banker's Cash Notes, Checks on Bankers, Promissory Notes and 
Bank Notes. By Joseph Chitty, Esq. of the Middle Temple, Barris- 
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the English and American Courts, brought down to the year 1834. 
By P. O. Beebee, Attorney at Law. One volume, 1000 pages. 

CHITTY'S PLEADINGS. A Treatise on the Parties to Actions, 
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Three volumes. 

CHITTY'S CRIMINAL LAW. A Practical Treatise on the 
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ARCHBOLD'S APPENDIX. A Collection of the Forms and 
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BINGHAM ON INFANCY. The Law of Infancy and Coverture. 
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TREATISE 



ON THE 



PLEADINGS 

IN SUITS IN THE 

COURT OF CHANCERY, 

BY 

ENGLISH BILL. 



BY JOHN MITFORD, Esq. 

(LORD REDESDALE.) 



THE FOURTH EDITION, 
WITH ADDITIONAL REFERENCES AND NOTES, 

BY GEORGE JEREMY, Esq. 

Of Lincoln's Inn, Barrister at Law. 



THE THIRD AMERICAN EDITION, 
WITH NOTES AND REFERENCES, 

BY CHARLES EDWARDS, Esq. 

COUNSELLOR AT LAW, NEW-YORK. 



NEW-YORK: 

JOHN S. VO OR HIES— LAW BOOKSELLER, 
Corner of Nassau and Cedar streets. 

1833. 



r 



Entered accordfng to Act of Congress, in the year efghteen hundred" and tiiirty-^peai. 

By John S. Voorhies, 

In the Office of the Clerk of the Southern District of New-YorJc» 



W. Osborn Sf Co., Printers, 85 Chatham-street, 



MR, JEREMY'S 
ADDRESS TO THE READER. 



Lord Redesdale having honored me with that 
confidence which was necessary to my superin- 
tending a new edition of the following highly valu- 
ble work, I proposed to examine the authorities 
cited in the last edition of it, and to add the refe- 
rences to such new cases as might appear to me 
to elucidate the subject, a plan in which his lord- 
ship was pleased to concur. In the additions ac- 
cordingly made by way of note, I have endeavor- 
ed, for the most part, to confine myself to the mere 
citation of authorities, generally selecting those ot 
the latest date ; although I have, in some instan- 
ces where the decisions did not directly sustain or 
precisely apply to his lordship's propositions, but 
where, nevertheless, notice of them seemed mate- 
rial, made such remarks as were necessary to their 
introduction. In these respects I have been led 
into greater detail than was originally intended ; 
but it is hoped that the practical utility of the pre- 
sent publication will be thereby increased. In re- 



G'^'^Ol^ 



[ iv ] 

ference to the authorities, I have made the dis- 
tinction, which it is now usual to adopt, between 
decisions and dicta, by citing the name of the case 
in the one instance, and the page of the report in 
the other. I have also deemed it expedient to 
render the index more copious and precise. His 
lordship has made some few additions and altera- 
tions in the text, but I have not been instrumental 
in withdrawing from the profession any part of the 
work itself And here I may be permitted to re- 
mark, that it has been a subject of great interest 
to me, in the course of my inquiries, to perceive 
that this work, which in its outline and substance 
was the original treatise upon equity pleading, 
has, from the time of its first publication been so 
far the guide to subsequent decisions, as to have 
rendered any material correction, or even qualifi- 
cation of the general principles explained in it, 
wholly unnecessary. G. J, 

1 New Square, 
Lincoln's Inn, 



PREFACE 

TO 

THE THIRD EDITION 



The materials from which the first edition of 
this treatise was compiled were not very ample 
or satisfactory; consisting, principally, either of 
mere books of practice, or of reports of cases, 
generally short, and in some instances manifestly 
incorrect and inconsistent ; and the author had 
had little experience to enable him to supply the 
deficiencies of those materials. The communica- 
tion of information, and the assistance of experience, 
were earnestly solicited by the preface to that 
edition, but with little effect. Four-and-thirty 
years have since elapsed ; and when, at the dis- 
tance of seven years from the first publication, the 
second edition was prepared for the press, such ob- 
servation as had occurred to the author in practice, 
and such notes as he had collected, were the prin- 
cipal means of improvement which he possessed; 
and he was then too much engaged in business to 
give that attention to the subject which it required. 
Nearly eight-and-twenty years have since passed ; 
and many volumes of reports have been published, 
and some treatises have appeared, (particularly 
those by Mr. Fonblanque and Mr. Cooper,) from 



VI PREFACE. 

which much assistance might have been derived. 
During the greater part of this period the author 
was not only unvviUing to engage in the labor of 
preparing a new edition, but disabled, by various 
avocations, from attempting to make any import- 
ant additions. Long absence from the bar, the 
consequent want of the habits of practice, age, the 
enjoyment of repose, and the indolence which that 
enjoyment too often produces, have increased his 
unwillingness to undertake a work of labor ; and 
that which is now offered is little more than a re- 
publication of the second edition, with references 
to some cases since reported ; a few additional 
notes of cases not reported ; some corrections of 
apparent errors; and some extension of parts 
which appeared to have been most imperfectly 
treated in the former editions. It is therefore far 
from satisfactory to himself; and would not have 
been now given, if he had not been assured that 
even a republication of the last edition, with all its 
imperfections, was desired by the profession. 



PREFACE 

BY 

THE AMERICAN EDITOR 



The adding of matter to this treatise would be 
like painting refined gold. It is so perfect of it- 
self, that even a running commentary, and the ad- 
dition of cases, appear a boldness. However, at 
the request of the publisher, and with a view to 
make this edition more widely circulated among 
the members of the American bar, the latter is 
done. 

There cannot be a better proof of the value of 
Lord Redesdale's treatise, than in the reference to 
it so often observed in every work on equity prac- 
tice. If more were wanting, a glance at the tes- 
timonials we have annexed, would bear out all that 
might be said in praise. 

This edition has the English cases carried down 
to as late a period as the receipt of reports will 
admit; and the decisions of our own and sister 
courts will be found interspersed. 

The present editor is aware of having added 
many notes which relate to points of practice, ra- 
ther than to principles of pleading. He did so, 
thinking the student might be advantaged by it. 
And he has often thought, that if a work of prac- 
tice were annexed to this treatise, the same would 



Vm AMERICAN PREFACE. 

form a valuable appendage. Mr. Willis' publica- 
tion could form a basis, and would go a great way 
in such an union. But, this the writer must leave 
for others to do. 

Lord Redesdale has died since Mr. Jeremy's 
edition of his lordship's work was published. A 
slight obituary is here presented to the reader.(«) 
We paused upon the anecdotes : doubting whether 
we should insert them. A little reflection has 
caused their being retained. These things show 
out character more than a funeral oration. 



(a) John Freeman Mitford was born August 18, 1748, not 1741, as ali 
the papers have stated ; neither was he, we learn from pretty good authority, 
intended from the first for the bar. He was a clerk in the Six Clerks' Office 
before he resolved on devoting himself to the higher branch of the profession j 
and, in this particular, the early part of his life coincides with that of Sir 
Samuel Romilly. He entered at Lincoln's Inn, and devoted himself to the 
Court of Chancery ; and in 1782 he published " A Treatise on Pleadings 
in suits in the Court of Chancery by English Bill." We are not aware 
what extent of practice he possessed before the publication of this admirable 
■work, but we find him enjoying a first rate practice soon after it appeared ; 
and, jointly with Lord Eldon, leading in the Court of Chancery. We shall 
leap over the intervening space, during which he became, successively, 
King's Counsel, W^elsh Judge, Member of Parliament (1789) and Solicitor 
General, (1792) and come at once to the prosecution of Home Tooke for 
high treason in 1794, when Lord Eldon (then Sir John Scott) as Attorney 
Greneral, and Lord Redesdale (then Sir John Mitford) as Solicitor General, 
conducted the case for the crown. On this occasion Lord Redesdale dis- 
tinguished himself not only for his forensic exertions, but by a singular 
display of sympathetic emotion. Tooke had been making some pretty strong 
insinuations against the Attorney General's integrity, wliich the party assail- 
ed thought it necessary to repel. He, accordingly, expatiated at some length 
on the value of character, and the excellence of his own : " He could endure 
" any thing but an attack on his good name ; it was the little patrijnony he 
" bad to leave to his children ; and, with God's help, he would leave it unim- 
'•' paired." Here his voice faltered, and he burst into tears ; and, to the sur- 
prise of every one, the Solicitor General became equally affected and wept 
as profusely as liis friend. " Do you know," said Tooke, in a loud whisper 
to a by-standerj on finding this bit of pathos likely to tell against him, — " da 



AMERICAN PREFACE. IX 

"you know what Mitfortl is crying ubout 1 He is crying to think of the 
"little patrimony Scott's children are likely to get." 

We have nothing else to tell about this trial which is probably not well 
known or much too long to repeat ; neither can we venture to particularize 
the more celebrated speeches which he made in support of Mr. Pitt's ad- 
ministration ; a long list of which might easily be found from the debates. 
He was named Attorney General in the summer of 1799, on Lord Eldon'a 
being raised to the peerage and named Chief Justice of the Common Pleas. 
Under Lord Sidmouth's administration (in 1801) he filled the situation of 
Speaker of the House of Commons, and in 1802, succeeded Lord Clare a3 
Chancellor of Ireland, and was elevated to the peerage by >he title which he 
held at the time of his death. It seems, according to the somewhat apocry- 
phal authority of Barrington, that his lordship was rather out of his element 
on his arrival among the wits of the Irish bar ; and a humorous account is 
given of his efforts, at his first dinner party, to chime in with the tone of the 
company. " His lordship had obviously got together some of the best bar 
" remarks (for, of wit he was totally guiltless, if not inapprehensive) to re- 
" peat to his company as occasion might offer ; and if he could not be hu- 
" morous, determined, at least, to be entertaining. The first of his lordship's 
" observations after dinner, was the telling Us that he had been a Welsh 
"judge, and had found great difficulty in pronouncing two double consonants 
" which occur in the Welsh proper names. ' After much trial,' continued 
" his lordship, ' I found that the difficulty was mastered by moving the 
" ' tongue from one dog-tooth to another.' Toler seemed quite delighted 
" with this discovery ; and requested to know his lordship's dentist, as he 
" had lost one of his dog-teeth, and would immediately get another in place 
" of it. This went off flatly enough — no laugh being gained on either side. 
" Lord Redesdale's next remark was, — that, when he was a lad, cock-fighting 
" was the fashion ; and that both ladies and gentlemen went full dressed to 
" the cock pit, the ladies being in hoops. ' I see now, my lord,' said Toler, 
" ' it was then that the term cock-a-hoop was invented.' A general laugh 
" now burst forth, which rather discomposed the learned chancellor. He sat 
" for awhile silent ; until skating became a subject of conversation, when 
" his lordship rallied, and with an air of triumph said, that in his boyhood 
" all danger was avoided ; for, before they began to skate they always put 
" blown bladders under their arms ; and so, if the ice happened to break, 
" they were buoyant and saved. ' Ay, my lord.' said Toler, ' that's what we 
" ' call blatheram-skate{a) in Ireland.' " These do no discredit to Sir 
Jonah's invention ; but there is a much better, and (if that be material), a 
well authenticated story of his lordship's inaptitude for joking : A cause was 
argued in chancery, wherein the plaintitY prayed that the defendant should 
be restrained from suing him on certain bills of exchange as they were no- 
thing but kites. " Kites V exclaimed Lord Rcdesdale : — " Kites, Mr. Plunk- 
" ett 1 Kites never could amount to the value of those securities 1 I don't 

(a) An Irish vulgar idiom for iionsense. 



X AMERICAN PREFACE. 

" understand this statement at all, Mr. Plunkett." " It is not to be expected 
" that you should, my lord," answered Plunkett : " In England and in Ire- 
" land, kites are very different things. In England, the wind raises the 
"kites; but, in Ireland, the kites raise the wind." "I do not feel any 
" way better informed yet, Mr. Plunkett," said the matter-of-fact chancellor. 
His lordship continued in the Irish chancellorship about seven years ; his 
decisions are contained in the Reports of Messrs. Schoales and Lefroy ; a 
book, we need hardly add, of high authority in the Courts both of England 
and Ireland. His chef d'oeuvre in legislation is commonly supposed to have 
been the introduction of the insolvent laws. Hrs lordship died January 23, 
1830; and was succeeded in his title and estates by his son. Our readers 
are aware that he was the brother of the historian of Greece ; a memoir of 
whom, by Lord Redesdale, appeared in the last edition of the history. 



Testimonials as to Lord Redesdale and his Work. 

Lord Redesdale. " The most distinguished pleader of modern times". — 
Sir Thomas Plumer, in Usborne v. Baker, 2 Maddock's Reports, 379. 

" I have derived the very greatest assistance from the very excellent treatise 
" composed by Lord Redesdale." " A standard of accurate judgment and 
" sound learning." — Beames. 

" What less could be expected from the author of a law book, which, for 
" learning and acuteness, and even elegance, (if that word can be .properly ap- 
'•■ plied to any EngUsh law book,) is perhaps inferior to none in our language." 
— London Times, August 31, 1826. 

" The productionof a very diligent and learned man ; not once given to the 
" world or hastily, but after search and research into every record, and again 
" given to the world by him." — Lord Eldon, in Bayley v. Adams, 6 Ves. . 
Jr. 595. 

" I shall only add two more authorities, those of the late and present lord 
" chancellors of Ireland. The peculiar litness of referring to the former of 
" those high authorities, in a question of this nature, will be generally felt. 
" For no authority, living or dead, could reference be had with more pro- 
" priety for correct information respecting the principles by which Courts of 
" Equity are governed, than to one whose knowledge and experience enabled 
" him fifty years ago to reduce the whole subject to a system, with such uni- 
" versally acknowledged learning, accuracy and discrimination, as to have been 
" ever since received by the whole profession as an authoritative standard 
" and guide. Viventi tibi prcBsentes largimur honcres." — Lord Eldon in 
Cholmondeley v. Clinton, 2 Jacob & Walker's R. 151. 

" Great respect is undoubtedly due to the opinion of one whose extent of 
" erudition in this branch of our jurisprudence is generally so justly ac- 
" knowledgcd." — Barton. 

" Lord Redesdale, whose opinion upon a question of equity pleadings is 
" always esteemed the highest authority." — Chancellor Walworth, in Bogar- 
dus V. The Rector, &c.. of Trinity Church, MS. 6th August, 1833. 



CONTENTS. 



INTRODUCTION. 

Of the extraordinary jurisdiction of the Court of Chancery, and of the manner in which suits to that 
jurisdiction are instituted, defended, and brought to a decision - 1 



I. Of Bills. Chap. I. - 21 



Chap. I. 
Sect. I. 

by whom, and 
against whom, 
a bill may be 
exhibited, 21 



I. by 
whom 



1. On behalf of the^ 
crown and of those who ( by the king's attor- 
partake of its preroga- y ney general or other 



tive or claim its parti- 
cular protection - 21 J 

2. Onbehalf of bodies^ 
politic and corporate, 
and persons who do not 
partake of the preroga- 
tive of the crown, and 
have no claim to its par- 
^ticular protection - 24 



officer 



^by them- 
selves 



21 

C Bodies politic and corpo- 
, , j rate, and all persons of full 
1. alone ^ ^^^^ ^^^^ being married wo- 

tmen, idiots, or lunatics, 24 
i 2. under ^i. infants - - 25 



Married women 



the pro- i r, 

tection | 

of others I 3. Idiots and lunatics 



2. against 
whom 



30 



1. Where the rights 'j 
of the crown, or of those 

who partake of its pre- I against the king's attorney general, 
rogative, or claim its i or other proper officer - "^^ 

particular protection, i 
are concerned. J 

all bodies politic and corporate, and all per-, 

2. In all other cases J> sons, married women with their husbands, and 
and lunatics with their committees - 30 



r I. Origi- 

al bills, 

33. 34. 

36. 51 



Chap. I. 
Sect. II. 

Of the several 
kinds and dis- 
tinctions of 
bills - 33 



Praying relief, 34. 37 fl- A bill praying the decree of the court touching 
some right claimed by the plaintiff in opposi- 



Not praying relief, 
34.51 



II. Bills not original - 33, 34. 55 



tion to the defendant 

2. A bill of interpleader 

3. A certiorari bill 

' 1. A bill to perpetuate the testimony 

witnesses 
2. A bill for discovery 

1. A supplemental bill - 

2. A bill of revivor - - - 

3. A bill of revivor and supplement 



yof > 



34. 

- 35. 

35. 



1. A cross bill - - - - - 

2. A bill of review . . - 

3. A bill in nature of a bill of review - 

4. A bill to impeach a decree on the 
ground of fraud - - - 

III. Bills in the nature of original-^ 5. A bill to suspend or avoid the execu- 



bills 



33. 35. 80 



tion of a decree - 

6. A bill to carry a decree into execution 

7. A bill in nature of a bill of revivor 36. 

8. A bill in nature of a supplemental ) q/? 

1^ bill - - . - - r • 



34.37 
34. 48 

34. 50 

34.51 
S4. 53 

61. 75 

69. 76 

70. 80. 

35. 80 
35.83' 
35. 9% 

35.92 

35. 94 

35.95) 
. 71. 97 

/2.9a 



XII 



CONTENTS 



I. Of Billa. Chap. 1.— continued. 



H 



Chap. I. 

Sec. III. 
Of the frame 
and end of the<{' 
several kinds of 
bills, and of in- 
i^ formations 36 



1. Praying relief 37 ■" 



I. Origi- 
nal bills 
36 



' 1 . A bill praying the decree of the court touching 
some right claimed by the plaintiff in opposi- 
tion to the defendant - - - - 37 



2. A bill of interpleader 

3. A certiorari bill 



48 
50 



rl. A bill to perpetuate the testimony of wit- ^ 

.2. Not praying relief 51 ^ nesses 3 

U. A 



nesses 
bill for discovery 



II. Bills not original 



III. Bills in the nature of 
origined bills 



55 



rl. A supplemental bill - . - 

2. A bill of revivor - - . 

3. A bill of revivor and supplement 



- 53 

61.75 
69.76 

70.80 



80 



fl. Crossbill 

2. Bill of review ----- 

3. Bill in nature of a bill of review 

4. Bill to impeach a decree on the ground of j 



fraud 



IV. Informations 



5. Bill to suspend or avoid the execution of a ; 



80 
83 
92 

92 
94 



decree - - . . - 

6. Bill to carry a decree into execution - 95 

7. Bill in the nature of a bill of revivor 71. 97 
90 V8. Bill in nature of a supplemental bill 72. 98 



Chap. II. 

Of defence to 

bills, - - 102 



Chap. II. 
Sect. I. 

By whom a 
suit may be de- 
fended - 102 



1. On behalf of the " 
crown, or of those 
who partake of its 
prerogative, or are 
under its particular 
protection - 102 



• 2. On behalf of f 
bodies politic and 
corporate, and of 
persons who do not 
partake of the prero- ■< 
gative of the crown, 
and have no claim 
to its particular pro- 
tection - - 103 



By the king's attorney general, or 
other proper officer - 102 



Bodies politic and corpo<- 

rate, and all person* 

1. By themselves, 103 <( of full age, not being 

married women, idiots 

^ or lunatics - 103 



ri. Infants - 103 
2. Under protection of, I 

or jointly with, oth- < 2. Idiots and lunatics 103 

ers - - 103 1 

\,3. Married women 104 



CONTENTS 



XIU 



I. Of Bills. Chap, ll.—conlinv,ed. 



r 



Chap. II. 
Sect. II. 
Of the na- 
ture of the va- 
rious modes of 
I defence to a 
bill - 106 



f Chap. II. 

Sect. II. 

Part I. 
Demurrers 
106, 107 



r I. to 

f '• '"relief 
original jj^ 

bills 

109 



' I. That the 
subject is not 
within the ju- 
risdiction of a 
court of equi- 
ty - - 110 



.s s 



lo 



II. That some oth 
er court of equity has 
the proper jurisdic 
tion - - 110. 151 

III.That the plain 
tiff is not entitled to 
sue by reason of some 
personal disability 

110. 153 

IV. That he has 
no interest in the sub- 
ject, or no title to in 
stitute a suit con- 
cerning it 110. 154 

V. That he has no 
right to call on the 
defendant concerning 
the subject 110. 158 

VI. That the de 
fendant has not that 
interest in the sub 
ject which can make 
him liable to the 
claims of the plain 
tiff - - 110. 160 



1. Where the 
principles of 
law by which 
the ordinary 
courts arc gui- 
ded give a 
right, but the" 
powers of those 
courts are not 
sufficient to af- 
ford a complete 
remedy 

111. 112 



1. Where 
no remedy, 
or no com- 
plete reme- 
dy - 112 



2. Where 
remedy at- 
tempted is 
defeated by 
fraud or ac- 
cident 127 



VII. That for 
some reason, found 
ed on the substance 
of the case, the plain- 
tiff is not entitled to 
relief - 110. 163 1^ 



2. Where the courts of ordi- 
nary jurisdiction are made 
instruments of injustice 

111. 131 

3. Where the principles of 
law by which the ordinary 
courts are guided give no 
right, but upon the princi- 
ples of universal justice the 
interference of the judicial 
power is necessary to pre- 
vent a wrong, and the posi- 
tive law is silent 111. 133 

4. To remove impediments to 
the fair decision of a ques- 
tion in other courts 111: 134 

5. To provide for the safety of 
property in dispute pending 
a litigation - - 111.135 

6. To prevent assertion of 
doubtful rights in a manner 
productive of irreparable in- 
jury - - - - 111. 137 

7. To prevent injury to a third 
person by the doubtful title 
of others - - - 112. 141 

8. To put a bound to vexatious 
and oppressive litigation 

112. 143 



9. To compel a discovery 
112. 148 

10. To preserve testimony 
112. 148 



XIV 



CONTENTS. 



I. OfBills. Chap, U.—eonlinued. 



II. to 
dis- 



covery 
1 109.185 



VIII. That the 
bill is deficient to 
answer the purposes 
of complete justice 

110. 163 

IX. That distinct 
objects are confound- 
ed in the same bill 
^ 110. 181 

f I. That the case made by the bill is not such 
■ wherein a court of equity assumes a jurisdiction 
to compel a discovery 185 

II. That the plaintiff has no interest in the 
subject, or no interest which entitles him to call 
on the defendant for a discovery . - - 185. 181 

III. That the defendant has no interest in the 
subject to entitle the plaintiff to institute a suit 
against him, even for the purpose of discovery 

185. 188 



II. to 
every 
other 

kind of 
bill 

201. 206 



IV. That there is no privity of title between 
the plaintiff and defendant, which can give the 
plaintiff a right to the discovery r - 185.189 

V. That the discovery, if obtained, cannot be 
material - - 185.191 

VI: That the situation of the defendant ren- 
ders it improper for a court of equity to compel a i 
t discovery 185. 193 



1. Bills of revivor and supplemental bills - - - 201 

2. Cross bills - 203 

3. Bills of review, and bills in nature of bills of review, 
and bills to impeach a decree, or suspend or avoid its 

"^ execution - 203 

4. Bills to carry a decree into execution ... - 206 

5. Bills in the nature of bills of revivor, or of bills of sup- 

plement ... 206 



III. Of the frame of demurrers, and of the manner in which their 
L validity may be determined 208 



CONTENTS. 



XV 



I. Of Bills. Chap' U.—eoniinued. 



fl.tore- fl. That the subject 



Chap. II 

Sect. II. 

Part II. 

Pleas 106 

218 



r 1. to lief 220 



original 
bills 220 



is not within the 
jurisdiction of- a 
court of equity 222 

2. That some other 
court of equity has 
the proper jurisdic- 
tion - - 223 



3. That the plaintiff 
is not entitled to 
sue by reason of< 
some personal disa- 
bility - 226 



1. That tlie plaintiff is 
outlawed - 226 

2. Excommunicated 227 

3. A popish recusant 228 

4. Attainted - - 228 

5. An alien - - - 229 

6. Incapable of institu- 
ting a suit alone 229 

4. That the plaintiff is not the person he pretends 
to be, or does not sustain the character he as- 
sumes 230 

5. That the plaintiff has no interest in the subject, 
or no right to institute a suit concerning it 231 

6. That he has no right to call on the defendant 
concerning it - - - . . 234 

7. That the defendant is not the person he is al- 
leged to be, or does not sustain the character he 
is alleged to bear - . . . 234 

8. That the defendant has not that interest in the 
subject which can make him liable to the de- 
mands of the plaintiff 



9. That for 
some reason 
founded on 
the substance 
of the case, 
the plaintiff 
is not entitled 
to relief 236 



1. Matters of 
record, or as of 
record in a' 
court of equity 
236 

■{ 2. Matters of 
record, or as of 
record in some 
court, not a 
court of equity 

L 250 



235 

' 1. A decree or 
order - 237 

2. Another suit 
depending 24& 

fl. Afine 25a 

2. A recovery 

253 

3. A judgment 
or sentence 

I 253 



XVI 



CONTENTS 



1. Of Bills. Chap". U.— continued. 



3. Matters 



' 1. A stated account - 259 

2. An award - - 260 

3. A release - - 261 



in pais ^ 4. A will or conveyance 263 



258 



I. 



5. Circumstances bringing 
a case within the protec- 
tion of a statute - 265 



10. That supposing the plaintiff entitled to the 

assistance of the court to assert a right, the 
defendant is equally entitled to the protection 
of the court to defend his possession - 274 

11. That the bill is deficient to answer the pur- 
poses of complete justice - - - 280 

r 1. That the plaintiff's case is not such 
as entitles a court of equity to as- 
sume a jurisdiction to compel a 
discovery in his favor - - 282 

2. That the plaintiff has no interest in 
the subject, or no interest which 
entitles him to call on the defend- 
ant for a discovery - - 285J 

3. That the defendant has no interest in 
the subject to entitle the plaintiff" 
to institute a suit against him, even 
for the purpose of discovery 283 

'1. Because the dis- 



[^2. to discovery 281"> 



4. That the situ- 
ation of the de- 
fendant renders 



covery may sub- 
ject the defendant 
to pains and pe- 
nalties - 284 

2. Because it will 
subject him to a 
forfeiture - 286 



court of equity 
to compel a dis- 
covery - 284 



3. Because it would 
it improper for a ^ betray the trust 
reposed in a coun- 
sel, attorney, or 
arbitrator - 288 

^ 4. Because he is a 

purchaser for a 
valuable conside- 
ration , without no- 
tice of the plain- 
ly tiff's title - 288 



CONTENTS 



XVll 



I. Of Bills. Chap. II — continued 



2. to bills ^ 

notorigi- > 1- To bills of revivor and supplemental bills - 289i 
nal, 288 J 



1. Cross bills 



290 



3. to bills 
in the 
nature of^ 
original 
bills, 290 



4. ofmat- 
ters rela- 
tive to 
pleas in 
general, 
290 



2. Bills of review, and bills in nature of bills of review, 
and bills to impeach a decree, or suspend or avoid its 
execution _ 291 

3. Bills to carry decrees into execution - 293 

4. Bills in the nature of bills of revivor, or of supple- 
mental bills -----_ 293 

1. The nature of pleas in general - - > 294 

2. Their form - - - . - ^ 30(ji 

3. The manner in which they are offered to the court 301 

4. The manner in which their validity is decided 301 



Chap. II. 
Sect. II. 
Part III. 



1. The general nature of answers 

2. The form of an answer 



306 
313 



1. Answers "S 3. The manner in which the sufficiency of answers is decided 



and dis- 
claimers, 
106. 306 



upon, and their deficiency supplied 
4. The nature and form of disclaimers 



315 
318 



2. Demurrers, pleas, answers, and disclaimers, or any two or more of them 



jointly 



Chap. III. r^- Of general replications ----.--. 

p a ions and lieir^ 2. Of special replications, and the subsequent pleadings anciently used 



consequences - 321 

Chap. IV. 
Of incidents to pleadings 
^ in general - 324 



3. Of subpoena to rejoin, and rejoinder 



319 

321 
321 
323 



INTRODUCTION. 



Of the extraordinary jurisdiction of the Court 
of Chancery ; and of the manner in which 
Suits of that jurisdiction are instituted, de- 
fended, and brought to a decision. 

The Chancery of England has various offices 
and jurisdictions. The most important jurisdiction 
is that which it exercises as a court of equity, 
usually styled its extraordinary jurisdiction, to 
distinguish it from those which are termed its 
ordinary jurisdictions, and are chiefly incident to 
its ministerial offices, and the privileges of its 
officers.(l) 



(1) The court of chancery is a court of general jurisdiction, and 
its principles and practice in England are, therefore, enforced over 
every part of the king's dominions to which the royal writs will run, 
unless the exercise of its authority be rendered unnecessary by the ex- 
istence of some local judicial power, capable of affording adequate 
relief. Jeremy's E. Jurisd. Introd- xxii. For the equitable jurisdic- 
tion of the United States' Courts, see 1 Kent's Com, 291. 2d. edit.; 
Conklin's Treatise, 8. 51. 121. The act for regulating processes in the 
courts of the United States, vol. ii. p. 299, provides, that the forms and 
modes of proceeding iu courts of equity, &c., shall be according to 
the principles, rules and usages which belong to courts of equity, &c. 
This act has been generally understood to adopt the principles, rules and 
usages of the court of chancery of England. Vattier v. Hinde, 7 
reters, 252. 

The circuit courts of the union have chancery jurisdiction in every 
state ; they have the same chancery powers and the same rules of de- 
cision ID all the states. United States v. Rowland , 4 Wheat, 108. 



20 EXTKAORDO JLRT JOlISDICTIOjr 

The exercise of this extraordmary jurisdictiQil 
bj cooTts distinct from thoee usually styled coorts 
of ccmamon law. to which the ordinary administra- 
tioQ of justice in cItU soits is intrusted, seems to 

Tfae caaiicgrv jzriaLcucc z-ives. zj \te cccsaraacc and law? ai the 
Uaired Scizes is uie sasze ui ali ti^e izaxcs of tiie onica, and lie role e£ 
^edoB k the sane eb al. b Ite eaztoae of that; 
eaxrr? :r -he TJoi^B^ Steiea aie ■aCgoreraed kgr the state 
-If 1 : i^irese £^ I79S, c&aip. 36, kes pK uri J ed that the maim af 

f : .: :7 sBfe ^h^ be accorfi^ to Ite friKapiea, rafas aai 
~ : : : T — r ^ eoorts of efrify, as eiBlnfiatiBgVBhei firaii 

-id^ ..wi^ .: ae iiTiiiiiBiri ml, aat acemime to the itaiB 

practice- ^ z:^ to tis£ peadk x of caarts ef cfaitj b theporeat 

: - -~- '^ : . i:z &om courts al Inr ; sBh^eet, af eaanc^ 



Tfated by tfaoae ac^ the eaaiti 

-i' _i '._..- ; ..^ ..;,. - . .:._ . ::> ti^e. prescribe. Bojffc ▼. 

Tlie pcwers iod nirisdiction. ot tiie ccnr: -t ciancery of ti*e Stale 
«f r^^ew-Tork are co-esi£flfiiTe with die pcwer; and junadictka of dw 
cMBtof chaaeerjiK Eagfaai, wMb the i ■ m |i<iiMi^ adiHi— b —d 1mm- 
tiff'nw creaGsl and anpaBeJ Enr the eoastitBCKMi asd favs af Ae ttaiiL 
S B. S 17X I 3f . la l^ev- Jerser, Deiairare, Sorth Caralea aai 
^^ipi, eqaslf fmnxa ceaade ia, aad are esuuBul by, i 

Cribaaafe,. apm tte Eaj^fafc BodeL jSlbJ ttii was ; 



case IB ITeir-Tcirik BiBta 1S23; ba£, aaw, &e exdnire; 

e^Bil^ B w adiiilyajw » ficon &e chEncdkr, andi ttfatj pavers are par^ 
i6Jfyreaeim&mtmmtjmigam-riee^<hm€dtaa,aai tkejexercwe, 
m dfaCaaet cu f a ei iEie» y a aabud j a jiaJi e tiu e cif fcnr aad eqaitj. The 
sane —r^wrl jansifieiiaB k pacfidlj' eaafiare^ oe Ae eaaett^ cuuli ie 
Ifarf&od anl vi^sna, ani ob Ae otcmt cuwto m BoMBan, aea ex- 
mjatJ gnBK,wi>f gty with ^e ihjfcliiwii ie tteae i lj i ri latheitilei 
•f Tovoat, Ofeiae, yew-Hsm^Am^ MaancfeaKftai, Skaie-Uaai, 
Cm muLtiLmt , Ohia, ladbiB, IKaaB, KeefiKfcj, TiiieiBiiL, Karfh 
CmaSma, Gear^ mi AbAmaak, &e janafietim of law aad u| ei tj ■ 
vetted ia cue tEOvBal; Ooagk, m some ei fkme ibtet, m m 
JSew-BampAire ami Bhaie-tAmd, cha a cer f powen are 
! abjiccti, ar am— ei ia lard cases froai 





DJTHE COrXT OF CHA2fCE»Y. 21 

be. in a sreat degree, a peculiariiy in the jiins|ira- 
dence erf" the country, bat prerading the wbole s^i^- 
tern of its judicial polity. Tlie ofisin of these coor^ 
is inrolred in ^reai obscurity :(1) their aflthoritj 
has been formerly questic*ied.and the sobjects 
and limits of their jurisdictioii *were then but [*2] 
imperfectly ascertained. Time has given them 
fiill establishment, and their powexs and duiif. : ha^t 
become nxed and acknowled»ed.^2^ If any doubt 

bvaad efH^, 
•f the Eagish lur. seens t» he itwiij 
tke efaitr povets of Ae 
TlKpawerto< 

Ae MBrt ueM —St loiiec M » dbree i 

,* JbsiL Rep, ■«»; Kti- 
Brtwer, 1 FidL JS^l 4S8: 

caM, Md fw the ih Mf.f.if.t of jaBtice, wiOi the aii «c a far k^ i ah - 
lire ptiw i 'i i nas . Tte pnadpfes of eyai^ ae Feai^ivvMa here haae 
digested firoM the acts of tike leselacere «■! the deaaoB of the sepeaK 
I— il eilhdH^^iie iTiBlj ■edjei^Miel. hn ihm i ai mm BWh i efc 
t£ afaHj Mw aaier tiK aaprefteadiqg ude ot .Ja Haesy «a . g fa ify m 
fiaiaijlh—ii^ hr AathoaT Laaset. jaar^ SraaeK ac Lav, iSdL 
1 KmFs Cbm. di ediL ISS, aate d. 
(1) See CKKcK"* Arwi IfaaHaaaK, ckifk 1 ; fiartea y StaOL . 

i» Jertwty's Bqm^ Jmi iwJjrfim ; 1 Aatten* Ch a rfg .BbC S«. 
•ad STik (£^fe^ eiiL) ; Q — i nii^ Amnr, v«L SS. fi. »2 ; 
<w U Ow «h fa Oh 1 wdfcm, te. P^.lf. CP. €>^; 1 Avr. 
Anacwi. Aad fcr sketehes aad iialljaa ef «he uaeir ef rhwiiii.i af 
•ar aaa coaatnr. see GriJBSu Lmm tbtgittgr: Hb/wa"* Jkiin-. Ja> 
h'%im.tiim ; I SaHii\f .&!«<. ^ .Vnr-rinr, .Jjyrarfr. ;3::9 ; 1 J(«bk 
Ck. JL Pr^^KV ; 4 Ktmi's Om. fiSd edkO 1^ 1^ ; I & ? roL £f 



C?" At th^ day. jastioe is aJaaaij^mi aa a oaast «f a ^ afc y apaa as 
&xed aad ceitaaa friac^lcB as ia a oaart «f law. 1 Km£* ChaL -tM, 
Si edtc Aacaeat a*! aaiiici |«ac6ce oa^^alas the ka- at the 



22 EXTRAORDINARY JURISDICTION 

on the extent of their duties has occurred of late 
years, it has principally arisen from the liberality 
with which the courts of common law have noticed 
and adopted principles of decision established in 
courts of equity ; a liberality generally conducive 
to the great ends of justice, but which may lead to 
great inconvenience, if the whole system of the 
administration of justice by courts of equity, the 
extent of their powers and means of proceeding, 
the subservience of their principles of decision to 
the principles of the common law, the preference 
which they have allowed to common-law rights 
where in conscience the parties have stood on equal 
grounds, and the defect in the powers of the courts 
of common law arising from their mode of pro- 
ceeding, should not be fully considered, in all their 
consequences.(a) 

In the construction of every system of laws, the 
principles of natural justice have been first consi- 
dered; and the great objects of municipal laws 
have been, to enforce the observance of those prin- 
ciples, and to provide a positive rule where some 
rule has been deemed necessary or expedient, and 
natural justice has prescribed none. It has also 
been an object of municipal law to establish modes 

of administering justice. 
[*3] *The wisdom of legislators in framing positive 

laws to answer all the purposes of justice has 
ever been found unequal to the subject ; and there- 
fore, in all countries, those to whom the administra- 

(a) See Lord Hardwicke's judgment in Wortlcy and Birkhead, 2 Ves. 
SnS, 574. And see 6 Ves. 39. 



OF THE COURT OF CHANCERY. 23 

tionof the laws has been intrusted, have been com- 
pelled to have recourse to natural principles, to as- 
sist them in the interpretation and application of 
positive law, and to supply its defects ; and this resort 
to natural principles has been termed judging ac- 
cording to equity. Hence a distinction has arisen 
in jurisprudence between positive law and equity; 
but the administration of both has in most countries 
been left, at least in their superior courts, to the 
same tribunal. In prescribing forms of proceed- 
ing in courts of justice, human foresight has also 
been defective; and therefore it has been com- 
monly submitted to the discretion of the courts 
themselves, to vary or add to established forms, as 
occasion and the appearance of new cases have 
required. 

In England a policy somewhat different has pre- 
vailed. The courts established for the ordinary 
administration of justice, usually styled courts of 
common law, have, as in other countries, recourse 
to principles of equity in the interpretation and ap- 
plication of the positive law : but they are bound 
to established forms of proceedmg ; are in some 
degree limited in the objects of their jurisdiction ; 
have been embarrassed by a rigid adherence to 
rules of decision, originally framed, and in general 
retained, for wise purposes, yet in their applica- 
tion, sometimes imcompatible with the principles, 
of natural and universal justice, or not equal to 
the full application of those principles ; and the 
*modes of proceeding in those courts, though [*4j 
admirably calculated for the ordinary piu'po- 



124 EXTRAORDINARY JUR^DICTION 

ses of justice, are not in all cases adapted to the full 
investigation and decision of all the intricate and 
complicated subjects of litigation, which are the re- 
sult of increase of commerce, of riches, and of lux- 
ury, and the consequent variety in the necessities, 
the ingenuity, and the craft of mankind. Their 
simplicity, clearness, and precision, are highly ad- 
vantageous in the ordinary administration of jus- 
tice ; and to alter them materially would probably 
produce infinite mischief: but some change would 
have been unavoidable if the courts of common law 
had been the only courts of judicature. 

Early therefore in the history of our jurispru- 
dence the administration of justice by the ordinary 
courts appears to have been incomplete, and to 
supply the defect the courts of equity have exerted 
their jurisdiction: assuming the power of enfor- 
cing the principles upon which the ordinary courts 
also decide when the powers of those courts, or 
their modes of proceeding, are insufficient for 
the purpose ; of preventing those principles, when 
enforced by the ordinary courts, from becoming 
(contrary to the purpose of their original establish- 
ment) instruments of injustice : and of deciding on 
principles of universal justice, where the interfer- 
ence of a court of judicature is necessary to pre- 
vent a wrong, and the positive law, as in the case 
of trusts, is silent. (6) (1) The courts of equity 

(6) Principles of decision thus grounds of successive decisions, are 
adopted by the courts *>f equity, when considered by those courts as rules to 
fully established and made the be observed with as much strictness 

(1) Quick V. Stuyvesant, 2 Paige's C. R. 84. The interference of 
a court of chancery is grounded upon the idea of its not being against- 
conscieoce. Seymour v. Delancy, 3 Cow, 445. 



OF THE COURT OF GIIANCERY. 25 

*also administer to the ends of justice, by re- [*5] 
moving impediments to the fair decision of a 
question in other courts; by providing for the safety 
of property in dispute pending a litigation ; by pre- 
serving property in danger of being dissipated or 
destroyed by those to v^hose care it is by law intrust- 
ed, or by persons having immediate but partial inte- 
rests ; by restraining the assertion of doubtful rights 
in a manner productive of irreparable damage ; 
by preventing injury to a third person from the 
doubtful title of others ; and by putting a bound 
to vexatious and oppressive litigation, and prevent- 
ing unnecessary multiplicity of suits : and, with- 
out pronouncing any judgment on the subject, by 
compelling a discovery, or procuring evidence, 
which may enable other courts to give their judg- 
ment; and by preserving testimony when in dan- 
ger of being lost before the matter to which it re- 
lates can be made the subject of judicial investi- 
gation(c)(l). 

as positive law. See the judgment of curately to describe the jurisdiction 
Sir Joseph Jekyll, quoted by Sir Tho- of our courts of equity. This gene- 
mas Clarke, in Blackst. Rep. 152. ral description, though imperfect, and 
Pluraque quse usu fori comprobata, in some respects inaccurate, is ofTer- 
denique juris scripti auctoritatem cd only for the purpose of elucidating 
propter vctustatem obtinuerunt. Cic. the following treatise, in the course 
de invent, lib. 2. c. 22. Heinecc. do of which the subject must be in many 
edict, praet. lib. 1, c. 6. p. 129. points more fully considered, 
(e) It is not a very easy task ac- 

(1) Professor Amos, in his lecture upon " What are Courts of 
Equity .-"' refers, with praise, to the following illustration : which is to 
be found in the Encyclopedia Americana. " In England and America, 
" courts of common law proceed by certain prescribed forms, and give 
" a general judgment for or against the defendant. They entertain ju- 
" risdiction only in certain actions, and give remedies according to the 
" particular exigency of such actions. But there are many cases in 
"which a simple judgment for either party, without qualifications and 

4 



2G EXTRAORDINARY JURISDICTION 

This establishment, as before observed, has ob- 
tained throughout the system of our judicial polity ; 
most of the branches of that system having their 



" conditions and particular arrang-ement? , will not do entire justice, ex 
" cequo et bono, to either party. Some modifications of the rights of 
" both parties are required ; some restraints on one side or the other; 
" and some peculiar adjustments, eitlier present or future, temporary or 
" perpetual. Now, in all these cases, courts of common law hare no 
•' method of proceeding' which can accomplish such objects. Their 
" forms of actions and judgment are not adapted to them. The proper 
" remedy cannot be found or cannot be administered to the full extent 
" of the relative rights of all parties. Such prescribed forms of action 
" are not confined to our law. They were known in the civil law ; 
" and the party could apply them only to their original purposes. In 
" other cases, he had a special remedy. In such cases, where the 
" courts of common law cannot grant the proper remedy or relief, the 
" law of England and tho United States (in those states where equity 
" is administered) authorizes an application to the courts of equity or 
" chancery, which are not confined or limited in their modes of relief 
" by such narrow regulations, but which grant relief to all parties, in 
" cases where they have rights ex cequo et bono, and modify and fashion 
" that relief according to circumstances. The most general description 
*' cf a court of equity is, that it has jurisdiction in cases where a plain, 
" adequate and complete remedy cannot be had at law — that is, in the 
" common law courts. The remedy must be plain ; for if it be doubt- 
" ful and obscure at law, equity will assert a jurisdiction. So, it must 
" be adequate at law ; for if it fall shori of what the party is entitled 
"to, that founds a jurisdiction in equity. And it must be complete — 
" that is, it must attain its full end at law ; it must reach the whole mis- 
" chief, and secure the whole right of the party, now and for the future ; 
" — otherwise equity will interpose and give relief. The jurisdiction of 
*' a court of equity is sometimes ioncurrent with that of courts of law ; 
" and sometimes it is exclusive. It exercises concurrent jurisdiction in 
"cases where the rights are purely of a legal nature, but where other 
" and more efiicient aid is required than a court of law can afford, to 
" meet the difBculties of the case and insure full redress. In some of 
" these cases, courts of law formerly refused all redress, but now will 
"grant it. But the jurisdiction having been onqp justly acquired, at 
" a time when there was no such redress at law, it is not now relin- 
" quished." 



OF THE COURT OF CHANCERY. 27 

^peculiar courts of equity(^), and the court (*6) 
of chancery assuming a general jurisdiction, 
which extends to cases not within the bounds or 
beyond the powers of other jurisdictions(c). 

(d) Thus the court of exchequer, latine, of London, of the Cinque 

established for the particular purpose Ports, and other particular jurisdic- 

of enforcing the payment of debts tions, have also their peculiar courts 

due to the king, and incidentally ad- of equity. 

ministering justice to the debtors and (e) The court of equity in the ex- 
accountants to the crown, has its chequer chamber is also frequently 
own peculiar court of equity. The considered as a court of general ju- 
courts of Wales, of the Counties Pa- risdiction, and in effect it is so, in 

An examination of the Eng-lish ancient chancery records will show 
many cases which appear purely of legal cognizance. They are in the 
form of petitions ; and appear to have been presented in consequence 
of assaults and trespasses, and a variety of outrages which were cog- 
Dizable at common law, but for which the parly complaining was unable 
to obtain redress, in consequence of the maintenance or protection af- 
forded to his adversary by some powerful baron, or by the sheriff or 
other officer of the county in which they occurred. See Preface to the 
Record Commission. 

Equity jurisdiction is simply arranged by ancient writers under three 
heads : Fraud ; Trust ; Accident. And by Maddox under six heads : 
1. Accident; 2. Account; 3. Fraud ; 4. Infants ; 5, Specific perform- 
ance ; 6. Trusts. And see an illustration of these heads, by Chitty, in 
his edition of Blackst. Com. book 3, ch. 27. 

When there has been much and protracted litigation, and the case is 
on the eve of a termination, and the question of equitable jurisdictioa 
is for the first time made, it is with great reluctance that the court will 
dismiss a bill. Underhill v. Van Cortland, 2 J. C. R. 369 ; Wilson 
V. Cheshire, 1 Dessau, 233 ; Farley v. Farley, lb. 506. In a case in 
which there is obviously no ground of jurisdiction, the court might be 
induced to interpose even at the last moment ; but they will not be 
astute to discover such an objection at the very moment when all the 
rights of the parties are about to be finally determined and put at rest 
for ever. Wilson v. Cheshire, supra. But when tho^uestion is made 
at the commencement of the suit, and urged at all its various stages, 
the reluctance is much diminished ; for, under such circumstances, it 
is the duty of the complainant thoroughly to investigate the subject and 
actually to ascertain the grounds upon which he stands. Farley v. 
Farley, supra. 



35 EXTRAORDINARY JURISDICTION 

The existence of this extraordinary jurisdiction, 
entirely distinct from the ordinary courts, though 
frequently considered as an enormity requiring re- 
dress, has perhaps produced a purity in the admi- 
nistration of justice which could not have been 
effected by other means -, and it is in truth, in a 
great degree, a consequence of that jealous anxiety 
with which the principles and forms estabhshed by 
the common law have been preserved in the 
1*7] ordinary *courts as the bulwarks of free- 
dom, and of the absolute necessity of prevent- 
ing the strict adherence to those principles and 
forms from becoming intolerable. 

A suit to the extraordinary jurisdiction of the 
court of chancery, on behalf of a subject merely, is 
commenced by preferring a bill, in the nature of a 
petition(/), to the lord chancellor, lord keeper, or 
lords commissioners for the custody of the great 
seal(^); or to the king himself in his court of 
chancery, in case the person holding the seal is a 

a great degree, though in principle it probably had the effect of preventing 

is not. For its jurisdiction is in that abuse of power which is too often 

strictness confined to suits of the the consequence of the single juris- 

crown, and of debtors and account- diction of one supreme court, 

ants to the crown ; and a suggestion, (/) 9 Edw. IV. 41. Prac. Reg. 

the truth of which the court^will not p. 57, Wyatt's edit. This book, and 

permit to be disputed, " that its suitor other books of practice, are only cited 

is a debtor and accountant to the where no other authority occurred, or 

crown," is still used to give it more where they might lead the reader to 

extensive jurisdiction. This practice, further information on the subject, 

as well as a similar fiction used to The Practical Register is mentioned 

give general jurisdiction to the com- by Lord Hardwicke, 2 Atk. 22, as a 

mon law court in the exchequer, and book, though not of authority, yet 

the fiction used to give jurisdiction better collected than most of the kind. 

to the court of king~'s bench in a va- (§•) As to the authority of a lord- 

riety of civil suits of which it has not keeper, see 5 Eliz. c. 18 ; and as to 

strictly cognizance, may appear the that of lords commissioners, see 1 W. 

objects of censure; but they have &Mc. 21. 



j£= 



OF THE COURT OF CHANCERY. 29 

party (/^), or the seal is in the king's hands(«) (1). 
But if the suit is instituted on behalf of the crown 
(fe), or of those who partake of its prerogative(Z), 
or whose rights are under its particular protection 
as the objects of a public charity(w), the matter 
of complaint is oftered to the court by way of infor- 
mation, given by the proper officer, and not by 
way of petition(M) (2). *Except in some few [*8] 
instances(o) (3), bills and informations have 

h) 4 Yin. Ab. 385. L. Leg. (m) 1 Ca. in Cha. 158. Anon. 

\. in Ch. 44. 255. 258. Jud. Auth. 3 Atk. 276. Sec 1 Swanst. 292. 

M. R. 182. 2 Prax. Aim. Cur. (n) On the subject of informa- 

Canc. 463. Ld. Chan. Jefferies tions, see chap. 1, sect. 3. (5) 

against Witherly. (o) There arc some bills in early 

(i) 1 West. Symb. Cha. 194. b. time in the French language. See 

(Ar) 1 Roll. Ab. 373. Att. Gen. Calendarsof Proceed, in Chan, print- 

V, Vernon, 1 Vern. 277. 370. ed under anthority of Commiss. on 

{I) As to idiots and lunatics, see Public Records, 1827. 
chap. 1, sect. 1. (4) 

(1) See 3 Black. Com. 442. In the court of chancery of the State 
of New-York, all bills and petitioBs are to be addressed " to the chan- 
" cellor of the State of New- York," without the addition of his name, 
or any other title or designation. Rule 10. And when the chancellor 
is a party, or interested in the event of a suit in chancery, the bill is to 
be addressed to and filed before some one of the vice-chancellors, who 
is to proceed thereon as a court of chancery, and possess all the powers 
of such a court in relation to the subject matter of such bill. And ap- 
peals from any order or decree of such vice-chancellor, is to be made 
immediately to the court for the correction of errors, in the same man- 
ner as if such order or decree had been made by the chancellor. 2 
Revised Stat. JV. Y. 169. J 7 ; and see the JVashington Insurance Com- 
pany V. Price, 1 Hopk. C. R. 1, (determined before the Revised Sta- 
tutes went into operation.) 

(2) It is the duty of the attorney general of the state to prosecute 
and defend all suits, in tlie event of which (he people of the State of 
New-York are concerned. 1 Revised Statutes, 179. J 1. 

(3) From the commencement of the reign of King Henry the Sixth, 
the use of the English language, which had been partially introduced 
in the time of his predecessor, became generally adopted. 

(4) Page 21. (5) Page 29. 



30 EXTRAORDINARY JURISDICTION 

been always in the English language ; and a suit pre- 
ferred in this manner in the court of chancery has 
been therefore commonly termed a suit hy English 
bill, by way of distinction from the proceedings in 
suits within the ordinary jurisdiction of the court 
as a court of common law, which, till the statute 
of the 4 Geo. II. c. 26, were entered and enrolled, 
more anciently in the French or Norman tongue, 
and afterwards in the Latin, in the same manner 
as the pleadings in the other courts of common 
law. 

Every bill must have for its object one or more 
of the grounds upon which the jurisdiction of the 
court is founded ; and as that jurisdiction some- 
times extends to decide on the subject, and in some 
cases is only ancillary to the decision of another 
court, or a future suit, the bill may either com- 
plain of some injury which the person exhibiting 
it suffers, and pray relief according to the injury ; 
or, without praying relief, may seek a discovery 
of matter necessary to support or defend another 
suit ; or, although no actual injury is suffered, it 
may complain of a threatened wrong, and stating 
a probable ground of possible injury, may pray the 
assistance of the court to enable the plaintiff, or 
person exhibiting the bill, todefend himself against 

the injury whenever it shall be attempted to be 
[*9] committed. As the court *of chancery has 

general jurisdiction in matters of equity not 
within the bounds or beyond the powers of inferior 
jurisdictions,(^) it assumes a control over those ju- 

(p) The court of equity in the ticular, is not an inferior jurisdic- 
exchequcr chamber, though a par- tion. 



OF THE COURT OF CHANCERY. 31 

risdictions, by removing from them suits which 
they are incompetent to determine. To effect this, 
it requires the party injured to institute a suit in 
the court of chancery, the sole object of which is 
the removal of the former suit by means of a writ 
called a writ of certiorari ; and the prayer of the 
bill used for this purpose is confined to that object. 
The bill, except it merely prays the writ of cer- 
tiorari, generally requires the answer of the de- 
fendant, or party complained of, upon oath. An 
answer is thus required, in the case of a bill seek- 
ing the decree of the court on the subject of the 
complaint, with a view to obtain an admission of 
the case made by the bill, either in aid of proof, or 
to supply the want of it ; a discovery of the points 
in the plaintiff's case controverted by the defend- 
ant, and of the grounds on which they are contro- 
verted ; and a discovery of the case on which the 
defendant relies, and of the manner in which he 
means to support it. If the bill seeks only the as- 
sistance of the court to protect the plaintiff against 
a future injury, the answer of the defendant upon 
oath may be required to obtain an admission of 
the plaintiff's title, and a discovery of the claims 
of the defendant, and of the grounds on which those 
claims are intended to be supported. When 
the sole object of a bill is a discovery *of mat- [*!')] 
ter necessary to support or defend another 
suit, the oath of the defendant is required to com- 
pel that discovery. The plaintiff' may, if he thinks 
proper, dispense with this ceremony, by consenting 
to or obtaining an order of the court for the purpose; 



33 EXTRAORDINARY JURISDICTION 

and this is frequently done for the convenience of 
parties where a discovery on oath happens not to 
be necessary. And where the defendant is enti- 
tled to privilege of peerage, or as a lord of par- 
liament, or is a corporation aggregate, the answer, 
in the first case, is required upon the honor of the 
defendant(^), and in the latter, under the common 
seal(r) (1). 

To the bill thus preferred, unless the sole object 
of it is to remove a cause from an inferior court of 
equity, it is necessary for the person complained 
of either to make defence, or to disclaim all right 
to the matters in question by the bill. As the 
[*11] bill calls *upon the defendant to answer the 

(q) Ord. in Cha. Ed. Bea. 105. and so it appears does a moravian, 

261. 18 Ves. 470. 1 Ves. 470. I see 22 Geo. II. c. 30. And infidels 

Vcs. and B. 187. 1 Jac. and W. 526. arc pcrmittted to swear according to 

And see Robinson v. Lord Eokeby, the forms of the religion which they 

8 Ves. 601, as to Irish peers. profess, provided such forms consti- 

(r) It may be observed, that al- tuto an appeal to the Supreme Being, 

though in ordinary cases the answer sec the well known cases of Omy- 

is required upon oath, other sane- chund v. Barker, 1 Atk. 21. S. C. 

tions are in certain instances allowed 2 £q. Ca. Abr. 397, and Ramkissen- 

in practice ; a quaker puts in his an- seat v. Barker, 1 Atk. 51 : a jew 

swer upon his solemn affirmation and makes oath upon the pentateuch, 

declaration, see 7 W. & M. c. 34. 8 Rohcley v. Langston, 2 Keble, 314, 

Geo. 1. c. 6. Ord. in Cha. Ed. Bea. Anon. 1 Vern. 263 : and a mahome- 

247. Woodx. Story, 1 P. Wms. 781. tan upon the koran. Stra. 1104.(2) 
Marsh v. Robinson, 2 Anstr. 479, 

(1) A complainant can call upon individual members of a corpora- 
tion, or their officers or aeents, to answer not only with the rest under 
the common seal, but, individually, upon oath : yet, in such a case, the 
defendants, whose discovery under oath is sought, are to be named in 
the bill as defendants. And the former as well as the present officers 
may be made defendants. Anonymous, 1 Kern. 117; Brumley v. West 
Chester J\lanuf. Society, 1 J. C. R. 366 ; Dumnier v. Corporation of 
Chippenham, 14 Fe?. Jr., 24.'"); 2 Revised Statutes, JST. Y. 464, J 43 ; 
lb. 465, } 52. 

(2) See 2 Revised Stalides, JY. Y. 487, ^ 82, and the sections which 
follow ; 18 Rule of JY. Y, Chancery. 



or THE COURT OF CHANCERY. 



35 



several charges contained in it, he must do so, unless 
ho can dispute the right of the plaintitFto compel 
such an answer, either from some impropriety in 
requiring the discovery sought by the bill, or from 
some jobjection to the proceeding to which the dis- 
covery is proposed to be assistant ; or, unless by 
disclaiming all right to the matters in question by 
the bill he shows a further answer for him to be 
unnecessary (5). 

A defendant to a bill may have an interest to 
support the plaintiff's case, or his interest may not 
be adverse to that claim ; he may be a mere trustee^ 
or brought before the court in some character 
necessary to substantiate the suit, that there may 
be proper parties to it (1). In such cases, his 
answer may often be mere matter of form, submit- 
ting the subject of the suit to the judgment of the 
court ; and, if any act should be required to be done 
by him, desiring only to be indemnified by the de- 
cree of the court. 

The grounds on which defence may be made 
to a bill, either by answer, or by disputing the 
right of the plaintiff to compel the answer which 
the bill requires, are various. The subject of the 
suit may not be within the jurisdiction of a court 
of equity : or some other court of equity may have 
the proper jurisdiction ; the plaintff may not be 
entitled to sue by reason of some personal disabi- 

(«) In some cases a defendant question. See Chap. II. sect. II. 
may be compelled to answer, though part 1.(1) 
he has no interest in the matters in 

(I) Bailey v. Inglee, 2 Paige's C. R. 278. (2) Page 159. 

5 



34 EXTRAORDINARY JURISDICTION 

[*12] lity: if he has no such ^disabiUty he raaj 
not be the person he pretends to be : he may 
have no interest in the subject : or if he has an inte- 
rest, he may have no right to call upon the defend- 
ant concerning it : the defendant may not be the 
person he is alleged to be by the bill : or he may 
not have that interest in the subject which can 
make him liable to the claims of the plaintiff' : and, 
finally, if the matter is such as a court of equity 
ought to interfere in, and no other court of equity 
has the proper jurisdiction, if the plaintiff is un- 
der no personal disability, if he is the person he 
pretends to be, and has a claim of interest in the 
subject, and a right to call upon the defendant 
concerning it ; if the defendant is the person he 
is alleged to be, and also claims an interest in the 
subject which may make him liable to the de- 
mands of the plaintiff; still the plaintiff may not 
be entitled, in the whole or in part, to the relief 
or assistance he prays : or if he is so entitled, the 
defendant may also have rights in the subject 
which may require the attention of the court, and 
call for its interference to adjust the rights of all 
parties ; the effecting complete justice, and finally 
determining, as far as possible, all questions con- 
cerning the subject, being the constant aim of 
courts of equity. Some of these grounds may ex- 
tend only to entitle the defendant to dispute the 
plaintiff's claim to the relief prayed by the bill, 
and may not be sufficient to protect him from 
making the discovery sought by it ; and where 
there is no ground for disputing the right of the 



OF THE COURT OF CHANCERS. 35 

plaintiff to the relief prayed, or if no relief 

is prayed, yet if there is any ^impropriety [*13] 

in requiring the discovery sought by the 

bill, or if the discovery can answer no purpose, 

the impropriety or immateriality of the discovery 

may protect the defendant from making it. 

The defence which may be made on these seve- 
ral grounds may be founded on matter apparent 
on the bill, or on a defect either in its frame or in 
the case made by it ; and may on the foundation 
of the bill itself demand the judgment of the court 
whether the defendant shall be compelled to make 
■any answer to the bill, and consequently whether 
the suit shall proceed ; or it may be founded on 
matter not apparent on the bill, but stated in the 
defence, and may on the matter so offered demand 
the judgment of the court, whether the defendant 
shall be compelled to make any other answer to 
the bill, and consequently whether the suit shall 
proceed, except to try the truth of the matter so 
offered ; or it may be founded on matter in the bill, 
or on further matter offered, or on both, and submit 
to the judgment of the court on the whole case 
made on both sides ; and it may be more complex, 
and apply several defences differently founded to 
distinct parts of the bill. 

The form of making defence varies according to 
the foundation on which it is made, and the extent 
in which it submits to the judgment of the court. If 
it rests on the bill, and on the foundation of matter 
there apparent demands the judgment of the court 
whether the suit shall proceed at all, it is term- 



36 EXTRAORDINARY JURISDICTION 

ed a demurrer ; if on the foundation of new matter 
offered, it demands the judgment of the court 
[*14] whether the *defendant shall be compel- 
led to answer further, it assumes a different 
form, and is termed a plea ; if it submits to answer 
generally the charges in the bill, demanding the 
judgment of the court on the whole case made on 
both sides, it is offered in a shape still different, 
and is simply called an answer. If the defendant 
disclaims all interest in the matters in question 
by the bill, his answer to the complaint made is 
again varied in form, and is termed a disclaimer. 
And all these several forms of defence, and dis- 
claimer, or any of them, may be used together, if 
applying to separate and distinct parts of the bill. 
A demurrer, being founded on the bill itself, ne- 
cessarily admits the truth of the facts contained in 
the bill, or in the part of the bill to which it ex- 
tends ; and therefore, as no fact can be in question 
between the parties, the court may immediately 
proceed to pronounce its definitive judgment on 
the demurrer, which, if favorable to the defend- 
ant, puts an end to so much of the suit as the de- 
murrer extends to. A demurrer, if allowed, con- 
sequently prevents any further proceeding(/). A 

(t) An amendment of a bill has 300 -,{1) and it seems most proper, if 

been permitted by a court of equity the ground of demurrer may be remo- 

after a demurrer to the whole bill had ved by amendment, to make a special 

been allowed ; but this seems not to order, adapted to the circumstances of 

{lave been strictly regular ; 2 P. Wms. the case. See chap. 2. sect. 2. part l.(2) 

(1) No doubt it was irregular ; see note to this case in Cox's 
edit, of P. Wms. And yet it is singular such practice should hare 
been supported in a case, where a master of tUe rolls was the defend-, 
ant deniurriog. 

(2) Page 106. 



OF THE COURT OF CHANCERY. 37 

plea is also intended to prevent further proceed- 
ing at large, by resting on some point founded 
on matter stated in the plea ; and as it rests on 
that point merely, it admits, for the pur- 
poses *of the plea, the truth of the facts [*15] 
contained in the bill, so far as they are not 
controverted by facts stated in the plea. Upon 
the sufficiency of this defence the court will also 
give immediate judgment, supposing the facts sta- 
ted in it to be true : but the judgment, if favorable 
to the defendant, is not definitive ; for the truth of 
the plea may be denied by the plaintiff by a repli- 
cation, and the parties may then proceed to ex- 
amine witnesses, the one to prove and the other to 
disprove the facts stated in the plea. The repli- 
cation in this case concludes the pleadings(M) ; 
though, if the truth of the plea shall not be sup- 
ported, further proceedings may be had, which will 
be noticed in a subsequent page(a:). An answer 
generally controverts the facts stated in the bill, 
or some of them, and states other facts to show the 
rights of the defendant in the subject of the suit ; 
but sometimes it admits the truth of the case made 
by the bill, and, either with or without stating ad- 
ditional facts, submits the questions arising upon 
the case thus made to the judgment of the court. 
If an answer admits the facts stated in the bill, or 
such as are material to the plaintiff's case, and 
states no new facts, or such only as the plaintiff is 

(tt) See Chap. 111.(1) (:i:) See Chap. II. sect. 2. part 2.(2) 

(I) Page 321. (2) Page 218. 



38 EXTRAORDINARY JURISDICTION 

willing to admit, no further pleading is necessary ; 
the answer is considered as true, and the court will 
decide upon it. But if the answer does not admit 
all the facts in the bill material to the plaintiff's 
case, or states any fact which the plaintiff is not 

disposed to admit, the truth of the answer, 
[*16] or of any *part of it, may be denied, and 

the sufficiency of the bill to ground the 
plaintiff's title to the relief he prays may be as- 
serted, by a replication, which in this case also 
concludes the pleadings according to the pre- 
sent(t/) practice of the court. If a demurrer or 
plea is overruled upon argument the defendant 
must make a new defence(l). This he cannot 
do by a second demurrer of the same extent after 
one demurrer has been overruled ; for although 
by a standing order of the court a cause of de- 
murrer must be set forth in the pleading, yet if 
that is overruled, any other cause appearing on 
the bill may be offered on argument of the demur- 
rer, and, if valid will be allowed ; the rule of the 
court affecting only the costs. But after a de- 
murrer has been overruled, new defence may be 
made by a demurrer less extended, or by plea, or 
answer ; and after a plea has been overruled, de- 
fence may be made by demurrer, by a new plea, 

(y) See Chap. 111.(2) 

(1) See Goodrich v. Pendleton, 4 J. C. R. 551 ; also, Murray v. 
Coster, 4 Cow. Rep. 617, where the question as to setting up the sanne 
matter which has been used in a pleading overruled, is scrutinized; 
and, Townsend v. Tawnsend, 2 Paige's C. R. 413. 

(2) Page 321, 



or THE COURT OF CHANCERY. 39 

or by an answer : and the proceedings upon the 
new defence will be the same as if it had been 
originally made(2^). A disclaimer, neither assert- 
ing any fact, nor denying any right sought by the 
bill, admits of no further pleading(a). If the sole 
object of the suit is to obtain a discovery, there 
can be no proceeding beyond an answer by which 
the discovery is obtained. A suit which only seeks 
to remove a cause from an inferior court of equity 
does not require any defence, and consequently 
there can be no pleading beyond the bill. 

*Suits thus instituted are sometimes im- [*17] 
perfect in their frame, or become so by ac- 
cident before their end has been obtained ; and the 
interests in the property in litigation may be 
changed pending the suit in various ways. To 
supply the defects arising from any such circum- 
stances new suits may become necessary, to add 
to, or continue, or obtain the benefit of, the origi- 
nal suit. A litigation commenced by one party 
sometimes renders a litigation by another party 
necessary, to operate as a defence, or to obtain a 
full decision on the rights of all parties. Where 
the court has given judgment on a suit, it will in 
some cases permit that judgment to be controvert- 
ed, suspended, or avoided by a second suit ; and 
sometimes a second suit becomes necessary to 
carry into execution the judgment of the court. 
Suits instituted for any of these purposes are also 

(z) See Chap. II. sect. 2. part 1.(1) (a) See Chap. II. sect 2. part 3.(3) 
(1) Page 106. (2) Page 306. 



40 EXTRAORDINARY JURISDICTION 

commenced by bill ; and hence arises a variety of 
distinctions of the kinds of bills necessary to an- 
swer the several purposes of instituting an origi- 
nal suit, of adding to, continuing, or obtaining, 
the benefit of a suit thus instituted, of instituting 
a cross-suit, and of impugning the judgment of the 
court on a suit brought to a decision, or of carry- 
ing a judgment into execution ; and on all the dif- 
ferent kinds of bills there may be the same plead- 
ings, as on a bill used for instituting an original 
suit. 

It frequently happens, that pending a suit the 
parties discover some error or defect in some of 
the pleadings, and if this can be rectified by 

amendment of the pleading, the court vs^ill 
[*18] in many cases permit *it. This indulgence 

is most extensive in the case of bills; which 
being often framed upon an inaccurate state of 
the case, it was formerly the practice to supply 
their deficiences, and avoid the consequences of 
errors, by special replications. But this tending 
to long and intricate pleading, the special replica- 
tion requiring a rejoinder, in which the defendant 
might in like manner supply defects in his answer, 
and to which the plaintiff might surrejoin, the spe- 
cial replication is now disused for this purpose, 
and the court will, in general, permit a plaintiff 
to rectify any error, or supply any defect in his 
bill, either by amendment, or by a supplemental 
bill ; and will also permit, in some cases, a de- 
fendant to rectify an error or supply a defect in 



OF THE COURT OF CHANCERY. 41 

his answer, either by amendment, or by a further 
answer(l). 

Summary jurisdiction has been given by au- 
thority of Parliament to courts of equity in cer- 
tain cases, arising incidentally from the provisions 
of acts of ParHament, both public and private, 
without requiring the ordinary proceeding by bill 
or information, and substituting a simple petition 
to the court ; the assistance of the court being re- 
quired only to provide for the due execution of tho 
provisions of such acts. 

But by an act of the 52 of Geo. III. c. 101, a sum- 
mary jurisdiction, on petition only, has been given 
in the case of abuses of trusts created for charita- 
ble purposes, which before were the subjects of 
information by the King's Attorney General, to 
which the persons of whom complaint was 
made might make ^^defence, according to [*19] 
the nature of the case stated in the informa- 
tion, by demurrer, plea or answer, so that the 
court might have before it the whole case on 
which its judgment might be required, and to 
which evidence to be produced in support of, or 
in answer to, the complaint made might be proper- 
ly applied. 



(1) Dupote V. Massey, Coxe's Dig. 147. The reason why the 
practice of special replications, and the accumulation of specialties 
apon them, is not now allowed in equity, may be this : the great object 
of special pleading at common law is to keep the law and fact di&lioct, 
they being to be tried by separate tribunals; but, in equity, the whole 
question comes before the court for ite decision both on the pleadings 
aad the proofs. Lube, 371. 

6 



42* EXTRAORDINARY JURISDICTION, &/C. 

The loose mode of proceeding authorized by 
this act was probably intended to save expense in 
investigating abuses of charities : but in practice 
it unavoidably led to great inconvenience ; the 
court not having before it any distinct record to 
which its judgment might be properly applied, and 
especially with respect to those against whom com- 
plaint might be made, or those against whom no- 
such complaint could be made, but whose interests 
might be affected by the judgment of the court. 
This inconvenience became apparent in a case 
which was made the subject of appeal to the House 
of Lords, who finally determined, that a jurisdic- 
tion, so summary, and in which the proceedings 
were so loose, ought, in just construction of the 
act, to be confined to the simple case of abuse of 
a clear trust, not involving any question beyond 
the question of such abuse, and particularly not 
involving the interests of persons to whom such 
abuse of trust could not be imputed.(6) 

In an inquiry into the nature of the several 
pleadings thus used, it seems most convenient to 

consider them in the order in which they 
[*20] have their *etlect, and consequently to treat, 

1, of bills; 2, of the defence to bills, and 
therein of demurrers, pleas, answers and disclaim- 
ers ; 3, of replications ; and 4, to notice matters 
incidental to pleadings in general, and particular- 
ly the cases in which amendments of inaccurate or 
erroneous pleadings are permitted. 

(6) Corporation of Ludlow v. Greenhouse. D. Proc. Feb. 1827- 



CHAPTER THE FIRST. 
OF BILLS. 



SECTION I. 



3y whom, and against wJiom, a Bill may be ex- 
hibited. 

In treating of bills, it will be proper to consider, 
I. The several persons who are capable of exhi- 
biting a bill, by themselves, or under the protec- 
tion, or in the name of others ; and against whom 
a bill may be exhibited : II. The several kinds 
and distinctions of bills ; and III. The frame and 
end of the several kinds of bills. An information 
differing from a bill in little more than in name and 
form, its nature will be principally considered un- 
der the general head of bills, and its peculiarities 
will be afterwards noticed. 

It has been already observed that suits on be- 
half of the crown, and of those who partake of its 
prerogative, or claim its peculiar protection, are 
instituted by officers to whom that duty is attri- 
buted(a). These are, in the case of the crown, and 
of those whose rights are objects of its particular 

(o) See above, p, 7. 



44 BY WHOM A BILL 

[22*] attention, * the king's attorney(6) or solici- 
tor general (c) ; and as these officers act 
merely officially, the bill they exhibit is by way, 
not of petition or complaint, but of information to 
the court of the rights which the crown claims 
on behalf of itself or others, and of the invasion or 
detention of those rights for which the suit is 
instituted. If the suit does not immediately 
concern the rights of the crown, its officers depend 
on the relation of some person, whose name is in- 
serted in the information, and who is termed the 
relator ; and as the suit is carried on under his di- 
rection, he is considered as answerable to the 
court and to the parties for the propriety of the 
suit and the conduct of it(d). It some- 
[*23] times happens that this person has an *inte- 
rest in the matter in dispute, of the in- 
jury to which interest he has a right to complain. 
In this case his personal complaint being joined 
to, and incorporated with, the information given 

(6) Seel Swanst. 290, 291.294, Chamber, in the British Museum, 

and Rex v. Austen, 8 Pri. Exch. R. Harl. MSS. vol. i. No. 1226, men- 

142. And the crown may be repre- tioned in 4 Bl. Com. 2G7. 
sented as plaintiff by the attorney (d) 1 Russ. R. 236. It appears, 

general, and as defendant by the soli- as intimated in the text, that it is not 

citor general, in the same suit, where absolutely necessary, even in the in- 

there arc conflicting claims between stances there alluded to, that a relator 

the king and persons partaking of should be named. 2 Swanst. 520. 4 

his prerogative, or under his peculiar Dow, P. C. 8, although the practice 

protection. See Att. Gen. v. Mayor of naming one seems to have been 

of Bristol. 3 Madd. 319, S. C. 2 universally adopted. 1 Ves. Jr. 247. 

Jac. & W. 294. Att. Gen. v. Vivian, 4 Dow, P. C. 8. 1 Sim. & Stu. 396. 

1 Russ. R. 226. But it may be remarked that the le- 

(c) See, as to the solictor general, gislature, in certain special cases in 

Wilkes's Case, 4 Burr. 2527. Sol. which the right may be doubtful, has 

Gen. V. Dovy, 6 May, 1735, and Sol. empowered the attorney general to 

Gen. V. Warden and Fellouship of institute a suit, by information, with- 

Suiton Coldjield, Mich. 17G3, in out requiring that a relator should be 

chancery. Ihis subject is particu- named. See 59 Geo. III. c. 91, and 

larly considered in part iii. sec. 4, of see 1 Sim. & Stu. 396. 
a manuscript treatise on the Star- 



MAY BE EXHIBITED. 45 

to the court by the officer of the crown, they 
form together an information and bill, and are 
so termed(c). But if the suit immediately 
concerns the rights of the crown, the information 
is generally exhibited without a relator(jr) ; and 
where a relator has been named, it has been done 
through the tenderness of the officers of the crown 
towards the defendant, that the court might award 
costs against the relator, if the suit should appear 
to have been improperly instituted, or in any stage 
of it improperly conducted(«*). The queen- 
consort, partaking of the * prerogative of the [*24] 
crown, may also inform by her attorney. 

W(i) 

Suits on behalf of bodies politic and corporate, 
and of persons who do not partake of the preroga- 

(e) See as instances, Att. Gen. v. 277. 370. Att. Gen. v. Crofts, 4 

Oglender, 1 Ves. Jr. 247. Att. Gen. Bro. P. C. 136, Toml. ed. 

V. Brown, 1 Swanst. 265. Att. Gen. (§■) The propriety of naming are- 

V. Master and Fell, of Cath. Hall, 1 lator for this purpose, and the oppres- 

Jac. R. 381. Att. Gen. v. Heelis, 2 sion arising from a contrary practice, 

Sim. & Stu. 67, and Att. Gen. v. were particularly noticed b/ Baron 

Vivian, 1 Russ. R. 226. If the rela- Perrot, iii a cause in the exchequer, 

tor should not be entitled to the equi- Att. Gen. v. Fox. In that cause no 

table relief which he seeks for him- relator was named ; and though the 

self, the suit may nevertheless be defendants finally prevailed, they 

supported on behalf of the crown. 1 were put to an expense almost equal 

Swanst. 305 ; and upon an informa- to the value of the property in dis^ 

tion and bill, the bill alone may be pute. Sec 2 Swanst. 520. 1 Sim. 

dismissed, see Att. Gen. v. Vivian, & Stu. 397. 1 Russ. R. 236. If the 

1 Russ. R. 226. And see Att. Gen. relator should die, this court would 

V. Moses, 2 Madd. 294, a case of in- appoint another. Att. Gen. v. Pow- 

formation and bill, in which the king el, Dick. 355. 

having had no interest, the attorney (h) 10 Edw. III. 179. Collins, 

general was an unnecessary party. 131. 2 Rol. Ab. 213. 

(^f) Att. Gen. v. Vernon, 1 Vcrn. 



(1) A foreign state may sue in chancery, but the description of it 
must be sufficiently clear to show upon whom the opposite party can 
serve process. The Columbian Government v. Roth-ichild, 1 Sim. 94, 
A corporation can only sue in the name and style given to it. Porter 
V. JVekervis, 4 Randolph's (Virginia) R. 359. 



46 



BY WHOM A BILL 



tive of the crown, and have no claim to its par- 
ticular protection, are instituted by themselves, 
either alone or under the protection of others. 
Bodies politic and corporate(/), and all persons 
of full age, not being feme-covert, idiot or lunatic, 
may by themselves alone exhibit a bill. A feme- 
covert, if her husband is banished(/r) or has ab- 
jured the realm (Z), may do so likewise ; for she 
then may act in all respects as a feme-sole(wi). 
Those, therefore, who are incapable of exhibiting 
a bill by themselves alone, are, ] , infants ; 2, mar- 
ried women, except the wife of an exile, or of one 
who has abjured the realm ; 3, idiots and lunatics 



(t) 3 Swanst. 138. As examples 
of suits by such bodies, see the Cha- 
ritable Corporation v. Sutton, 2 
Atk. 406. Universities of Oxford 
and Cambridge v. Richardson, 6 
Vcs. 689. Mayor, <^c., of London 
V. Levy, 8 Ves. 398. City of Lon- 
don V. Mitford, 14 Ves. 41. Bank 
of England v. Lunn, 15 Ves. 569. 
Mayor tf Colchester v. Lowten, 1 
Ves. & B. 226. Dean and Chapter 
of Christ church v. Siinonds, 2 Me- 
riv. 467. East India Camp. v. 
Keighley. 4 Madd. 10. Vauxhall 
Bridge Company v. Earl Spencer, 
1 Jac. R. 64. President, tf-c., of Mag- 
dalen College V. Sibthorp, 1 Russ. 
R. 154. 

(k) 1 Hen. IV. 1. SybeU Bel- 
knap' s case, 2 Hen. lY.l a. 11 Hen. 
IV. 1 a. b. 

{() Thomas of Weyland's case, 
19 Edw. I. 1 Inst. 133 a. 

(m) See Newsome v. Bowyer, 3 
P. Wms. 37. 

(n) It may seem, that the disabili- 



ties arising fronri outlawry, excommu- 
nication, conviction of popish recu- 
sancy, attfiinder, and alienage, and 
those which formerly arose from vil- 
lenage and profession, ought to bo 
here noticed. Such of them as sub- 
sist do not, and the others did not, 
absolutely disable the person suffer- 
ing under them from exhibiting a 
bill. Outlawry, excommunication, 
and conviction of popish recusancy, 
are not in some cases any disability ; 
and where they are a disability, if it 
is removed by reversal of the outlaw- 
ry, by purchase of letters of absolu- 
tion in the case of excommunication, 
or by conformity in the case of a po- 
pish recusant, a bill exhibited under 
the disability may be proceeded upon. 
Attainder and alienage no otherwise 
disable a person to sue than as they 
deprive him of the property which 
may be the object of the suit. Vil- 
lenage and profession were in the 
same predicament. See chap. ii. 
sect. 2. part 2. 



(1) In J^ialin v. Malin, 2 Johns. C. R. 238, one Jemima Wilkinson, 
who was a necessary parly plaintiff, had religious scruples from becom- 
ing a parlj to any suit. Chancellor Kent said, " if Jemima W. has re- 



MAY BE EXHIBITED. 



4-^ 



*1. An infant is incapable hy himself o^ [*^25] 
exhibiting a bill, as well on account of his 
supposed want of discretion, as his inability to 
bind himself, and to make himself liable to 
the costs of the suit(o). When, therefore, an 
infant claims a right, or suffers an injury, on 
account of which it is necessary to resort to 
the extraordinary jurisdiction of the court of 
chancery, his nearest relation is supposed to be 
the person who will take him under his protec- 
tion, and institute a suit to assert his rights or 
to vindicate his wrongs ; and the person who in- 
stitutes a suit on behalf of an infant is therefore 
termed his next friend. But as it frequently 
happens that the nearest relation of the infant 
himself withholds the right, or does the injury, or 
at least neglects to give that protection to the in- 
fant which his consanguinity or affinity calls upon 
him to give, the court, in favor of infants, will 
permit any person to institute suits on their 
behalf(p) (2) ; and ^whoever acts thus the [*26] 

(o) Turner v. Turner, Strang, chan. 376. Anon. 1 Atk. 570. 2 
708.f 1) P. Wms. 120. 1 Ves. Jr. 195. 

(jp) Andrews v. Cradock, Prec. in 

" ligious scruples whicli cannot be surmounted, and this shaJl be made 
" to appear, eitlier by affidavit or the report of a marster, perhaps she 
" may be permitted to become plaintiff by her prochein amy. A per- 
" son incompetent to protect himself from age or weakness of mind, or 
" from some religious delusion or fanaticism, quern urgst/anaticus error, 
" vel iracunda Diana, ought to come under the protection of the court." 
And see notes to page 29, post. 

(1) Bradwell v. Weeks, 1 J. C. R. 325. 

(2) The first news we hear i)[ a prochein amy is in the statute of 
Westminster, 2 C» 15. Infanti' Lawyer. In matters relating to in- 



48 



BY WHOM A BILL 



part which the nearest relation ought to take, is also 
styled the next friend of the infant, and as such is 
named in the bill(^) (!)• The next friend is liable 
to the costs of the s'!it(r), and to the censure of the 
court, if the suit is wantonly or improperly insti- 
tuted(s) ; but if the infant attains twenty -one, and 

(9) 2 Eq. Cas. Abr. 239. 1 Ves. Mosely, 86. Anon. 1 Ves. Jr. 409 ; 

Jr. 195. and see Pennington v. Alvin, 1 

(r) 4 Madd. 461 ; and see Turner Sim. & Stu. 264. 
V. Turner, 2 P. Wms. 297. S. C. on (s) And if the next friend of an 
appeal, 2 Eq. Ca. Ab. 238; and infant do not proceed in the cause, this 
Strange, 708. It is hence, of course, court, if it be desirable, will super- 
important to the defendant that the sedehim. Ward v. Ward, 3 Meriv. 
prochein amy, or next friend of liie 706; 1 Jac. & W. 483 ; but the next 
infant, be a person of substance, friend of an infant cannot procure the 
Anon. 1 Atk. 570 ; and, where the substitution of another person to act 
contrary appears to be thefttct, on an in his place, without submitting to an 
application by the defendant before investigation into his past conduct by 
answer, he will be compelled to give the court. Melling v. Melling, 4 
security for costs, or another person Madd. 261. if the next friend 
will be appointed to sue in his stead, should die, the court will take upon 
Wale V. Salter, Mosely, 47. Anon, itself to appoint another. Lancaster 

faots, the court often gives extra-judicial directions ; and bears a per- 
son as amicus curies. Diet, per cur., ia Earl of Pom/ret v. Lord 
Windham, 2 Ves. 484. The filing of a bill on behalf of an infant 
makes him a ward of court. Ambl. 303. Lord Raymond's case, 
Forr. 60. 

(1) Ewing's heirs v. Armstrong, 4 J. J. Marshall's R. 49. With- 
in the State of New-York, the chancellor, or a vice-chancellor, or 
master, must appoint a competent and responsible person to appear as 
next friend for an infant, before any process can be issued in the name 
of the latter. 2 R. S. 446, { 2. And, if required by the officer ma- 
king the appointment, he must give bond, in a penalty at least double 
the amount claimed in such suit, with such sureties as shall be approved 
by such officer, conditioned that such next friend shall duly account 
to such infant for all moneys which may be recovered in such suit. lb. 
j 5. And see as to bill for a divorce, where the party is an infant. 
lb. 144. 

Perhaps, in a proper case, on an application to the court, an infant 
who had bo means to indemnify a responsible person for costs might be 
permitted to sue by his next friend in forma pauperis, Fullon v. 
Rosevelt, 1 Paige's C. R. 180. Chancellor Walworth, in saying tbii, 
adds, " I see no objection to such a proceeding, though Lord Eldon in- 



MAY BE EXHIBITED. 49 

afterwards thinks proper to proceed in the cause, 
he is Hable to the whole costs(^) (2). If the 
*person who thus acts as friend of an infant [*27] 
does not lay his case properly before the 
court, by collusion, neglect or mistake, a new bill 
may be brought on behalf of the infant; and if a 
defect appears on hearing of the cause, the court 
tnay order it to stand over, with liberty to amend 
the bill(w). A 

The next friend of an infant plaintiff is consider- 
ed as so far interested in the event of the suit that 

V. Thornton, Ambl. 398. Bracey Strange, 708, and 2 Eq. Ca. Ab. 

V. Sandiford, 3 Madtl. 468.(1) 238. It now seems, that if no mis- 

(/) In Turner and Turner, 2 P. conduct {Pearce v. Pearce, 9 Ves. 

Wnis. 297, Lord King was first of 548,) be proved against the next 

opinion that upon a bill filed in the friend, either in the institution, or 

name of an infant who attained twen- progress of the suit, the late infant, 

ty-one, the plaintifl^ was liable to the although he should not adopt it, will 

costs, though he did not proceed after be liable to the costs. Anon. 4 Madd. 

he attained that age ; but upon are- 461. 

hearing he changed his opinion, and (w) Serle v. St. Eloy, 2 P. 

dismissed the bill without costs, the Wms. 386. Pritchard v. Quin- 

prochein amy being dead. See S. C. chant, Ambl. 147. 

" timated it could not be done. But in such a case the court would, 
" in the first place, see that there was probable cause for the proceeding-, 
" and appoint a proper person to prosecute the suit as prochein ami/.'' 
Chancellor Walworth, no doubt, here refers to an Anomjmous case in 1 
Ves. Jr. 409. 

(1) As to the mode of applying for a new friend in such a case, see I 
Grant's Pract. 34? ; Bracey v. Sandiford, 3 Mad. 468 ; Lancaster v. 
Thornton, 1 Dick. 346, S. C. 1 Ambl. 398. 

(2) The only exception to this rule must be, the case that sometimes 
occurs, where a decree has been made during his infancy, by which the 
infant's rights are bound. There the suit cannot be abandoned, al- 
though it is not brought in good faith and is against the interest of the 
infant. In such a case, if the infant applies in time, the court might 
compel the next friend to remunerate him for the costs and expenses to 
which his estate has been improperly subjected, although he was com- 
pelled to proceed ooder the decree. Waring v. Crane, 2 Paige'i 
C. R. 82. 

7 



50 BY WHOM A BILL 

he or his wife(a:) (1), cannot be examined as a wft- 
ness. If tlieir examination is necessary for the 
purposes of justice, his name must be struck out of 
the bill, and that of another responsible person 
substituted, which the court, upon application^ 
will permit to be done(i/). As some check upon 
the general license to institute a suit on behalf of 
an infant, if it is represented to the court that a 
suit preferred in his name is not for his benefit, an 
inquiry into the fact will be directed to be made 
by one of the masters ; and if he reports that the 
suit is not for the benefit of the infant, the court 
will stay the proceedings(2:). And if two suits for 
the same purpose are instituted in the name of an 
infant, by different persons acting as his next 
friend, the court will direct an inquiry to be made 
in the same manner, which suit is most for 
[*28] his benefit; and *when that point is as- 

(:r) Head v. Head, 3 Atk. 511. {z) Da Costa v. Da Costa, 3 P. 

(y) Strange, 708. As a general Wms. 140. Strange, 709. 2 Eq. Ca. 

rule, it may be stated that this is done Ab. 239.(2) Such an inquiry will 

upon the next friend giving security not be -lirecled upon the application 

for the costs incurred in his time, of the next friend himself. Jones v. 

Witts V. Campbell, 12 Ves. 493. Da- Powell, 2 Meriv. 141. 
venport v. Davenport, 1 Sim. & Stu. 
101. 



(1) In a case at law, Denniston v. Spurting, 1 Stra. 506, where 
an infant brought the action, the wife of the next frieod was called, and 
the court allowed her to be a good witness; while in Head v. Heady 
referred to, above, in the notes, the depositions of the wife of a next 
friend were not allowed to be read for the plaintiff, he being liable for 
costs. Lord Redesdale's rule is no doubt correct. It is confirmed by 
the common practice of applying for substitution, where the present 
next friend is wanted as a witness ; as in Wilts v. Campbell ; Daven- 
'port V. Davenport, supra. 

(2) S. P. Garr v. Drake, 2 J. C. R. 542. 



MAY BE EXHIBITED. 51 

■certained will stay proceedings in the other 
suit(«). 

2. A married woman being under the protection 
of her husband, a suit respecting her rights is usu- 
ally instituted by them jointly(6). But it some- 
times happens that a married woman claims some 
right in opposition to rights claimed by her hus- 
band ; and then the husband being the person, or one 
of the persons to be complained of, the complaint 
cannot be made by him. In such case, therefore, 
as the wife being under the disability of coverture 
cannot sue alone, and yet cannot sue under the 
protection of her husband, she must seek other 
protection, and the bill must be exhibited in her 

(a) 1 Ves. 545 ; Owen v. Owen, generally, after a decree in one of the 

Dick. 310.(1) Sullivan v. Sullivan, suits, 1 Jac. R. 528. 
2 Meriv. 40. Mortimer v. West, 1 (b) Smith v. Myers, 3 Madd. 

Swanst. 358 ; but it seeiits an appli- 474. i^^arre?- v. TlyaW, 5 Madd. 449. 

cation for this purpose should not be Hughes v. Evans, 1 Sim. & Stu, 

made except in a strong case. Ste- 185.(2) 
vens V. Stevens, 6 Madd. 97 ; nor 

(1) This case of Owen v. Owen does not bear the author out in his 
saying that proceedings will be stayed. The court was pressed to re- 
strain the plaintiff in the second suit from prosecuting that suit; but 
Sir Thomas Clark, M. R., refused to do so, as such proceeding would 
be at his peril; and on searching by order of his honor, precedents 
could not be found, the parties generally resting on the report. And 
in Taylor v. Oldham, 1 Jacob's R. 527, the court rightly felt the diffi- 
culty of staying the second suit : for there might never be a decree in 
the first cause. Bennet, in his late work on the Duties of Master, says, 
it will be referred to the master to see which is most for the infant's 
projit ; and upon these references, the master is at liberty to suggest 
any improvement in the frame of the suit, and to report any special 
circumstances that in his opinion may be for the infant's benefit, p. 45. 

(2) S. P. Schuyler v. Hoyle, 5 J. C. R. 196. In a court of equity, 
although not at law, baroo and feme are considered as two different 
persons; and, therefore, it is that a wife by her proc/iem amy may sue 
her own husband. Sturgis v. Corp, 13 Ves. 190 ; 3 P. Wms. 38, note 
A ; Kirk v. Clark, Prec. in Ch. 275. 



52 BY WHOM A BILL 

name by her next friend(c), who is also named in 
the bill in the same manner as in the case of an 
infant(<^) (2). But a bill cannot in the case of a 

(c) Griffith V. Hood, 3 Ves. 452. of a feme-covert is not always, in the 

Lady Elibank v. Montolieu, 5 Ves. first instance, liable to the costs. 

737. Pennington v. Alvin, 1 Sim. Strange, 709, 2 Eq. Ca. Ab. 239. 

& Stu. 264.(1) Barlee v. Barlee, 1 Sim. «feStu. 100, 

(rf) But it seems, the next friend 



(1) And it appears the husband may not only be the next friend, but 
that it may often be desirable he should be so : for by joining the wife 
3S a co-plaintiff, he will thereby admit the statement in the bill that it 
is the separate property of the wife, and this would answer all the pufr 
pose of making him a defendant. Smith v. Myers, 3 Madd. R. 474, 
Where a married woman is a complainant and her prochein amy dies, 
she must name a new next friend in due time afterwards, or her bill 
will be dismissed. Vice-chancellor Leach ordered it to be done with- 
in two months. Barlee v. Barlee, I S. Sf S. 100. 

In Tennessee a bill has been allowed to be brought by a feme covert, 
for separate maintenance without a next friend, where security for costs 
was given. Knight v. Knight, 1 Overton's R. 120. No temporary 
absence of a husband or separate maintenance, or living apart, will 
enable a wife to sue or be sued, alone. But if he is an alien who baa 
pever resided within the jurisdiction, she can. Robinson v. Reynolds^ 
1 Aiken's (Vermont) R. 174. 

(2) By the Revised Statutes of the Sate of New-York, vol. ii. p. 144, 
§ 39, a bill for a divorce dissolving the marriage contract, may be exhi^r 
ted by a wife in her own name, as well as by her husband. A bill tQ 
annul a marriage on the ground that one of the parties was under the 
age of legal consent, may be brought by the parent or guardian en- 
titled to the custody of such minor, or by the next friend of such minor, 
lb. 142, 5 21. If, on the ground of idiotcy or lunacy, any relative of 
such idiot interested to avoid the marriage may file a bill. lb. { 24, 25, 
And where the marriage of an idiot or lunatic is sought to be annulled 
during the life time of both the parties to the marriage, and no suit 
shall be prosecuted by any relative, a bill may be filed on the applica-; 
tion of any person admitted by the court to prosecute as the next friend 
pf such idiot or lunatic, lb. 143, } 26. After a restoration of reason, 
the party who has returned to sanity may file such bill. lb. j 27. If 
on account of force or fraud, on the application of the wronged party 
or of the parent or guardian of such party, lb. 5 30. If on the ground 



MAY BE EXHIBITED. 53 

feme-covert be filed without her consent(«). The 
consent of an infant to a bill filed in his name is 
not necessary(y*). 

*3. The care and commitment of the [*29] 
custody of the persons and estates of idiots 
and lunatics are the prerogative of the crown, 
and are always intrusted to the person holding the 
great seal, by the royal sign-manual. By virtue 
of this authority, upon an inquisition finding any 
person an idiot or a lunatic, grants of the custody 
of the person and estate of the idiot or lunatic are 
made to such persons as the lord chancellor, or 

(e) Andrews v. Cradock, Prec. in (/) Andrews v, Cradock, Free. 
Ch. 376. S. C. 1 Eq. Gas. Abr. 72. in Ch. 376.(2) 
J Sim. & Stu. 265.(1) 



of physical incapacity, by the injured party against the party whose 
incapacity is alleged. Suits to annul a marriage are directed to be by 
bill. lb. 144, } 35. A separation from bed and board for ever, or for 
a limited Lime, may be decreed by the court of chancery on the cem- 
plaint of a married woman. } 50. 

But no bill is to be filed in the name of a feme covert to obtain a 
sentence of nullity declaring void her marriage contract, or to obtain a 
decree for a separation or limited divorce, unless the suit is prosecuted 
by a responsible person, as the next friend of the complainant, who is 
to be responsible to the defendant for such costs as may be awarded by 
the court, if it appear the suit was commenced without any reasonable 
or justifiable cause. Lawrence v. Lawrence, 3 Paige's C. R. 267 ; 
163 Rule of N. Y. Chancery. The validy of this rule was tested and 
supported in Wood v. Wood, 2 Paige's C. R. 454. ; -S. C. on appeal, 8 
Wend. 357. It will be seen that this rule does not touch a case of 
adultery ; there, a bill may be filed by the wife without a next friend f 
and see Kirby v. Kirby, 2 Paige's C. R.261. See the history of the 
law of divorce in the State of New-York, in Burtisv.Burtis, 1 Jioplfit 
557. 

(1) Fulton V. Rosevelt, 1 Paige's C R. 178. 

(2) Ibid. ^ 



54 BY WHOM A BILL 

lord keeper, or lords commissioners for the custo- 
dy of the great seal for the time being, think pro- 
per(^) (1). Idiots and lunatics, therefore, sue by 
the committees of their estates(A) (2). Sometimes, 

{g) 3 P. Wms. 106, 107. Ex Ridler, 1 Eq. Ca. Ab. 279. Prac. 
parte Pickard, 3 Ves. & Bea. 127. Reg. 272. Wy. ed. 
(A) 1 Ca. in Cha. 19 ; Eidler v. 



(1) By the statutes of the State of New-York, the chancellor has 
the exclusive care aud custody of all idiots, lunatics, persons of unsound 
mind, and those who are incapable of conducting their own affairs in 
consequence of habitual drunkenness. 2 R. S. 52, } I ; L'Amoureax, 
committee, v. Crosby. 2 l^aige's C. R. 422. 

The court of chancery has no jurisdiction in the matter of lunatics, 
unless they are found to be so under a commission of lunacy, or they 
are parties in a cause in court. In re Scott, 3 Legal Observer, 164. 

In the consistorial court of London, a father, not being committee, 
instituted a suit to annul the marriage of an insane son ; and the suit 
was dismissed. A suit was afterwards brought by the son who had be- 
come of age anil sane, and it was sustained. 

In some instances, persons incapable of acting for themselves, though 
not lunatics or idiots or infants, have been permitted to sue by their 
next friend. Chancellor Thurlow has said, he was not against the 
practice of finding a man lunatic who was, by the infirmities of age, 
unequal to the management of hk affairs. But the more usual course 
in the English court is to appoint him a guardian, or some person to act 
for him, in the receiving and managing his property. Cur. Can. 468 ; 
Wyatfs P. R. 272; Sackvill v. Aijleworth, 1 Vern. 105, and cases 
there ; Attorney General v. Tyler, 2 Eden. 230 ; Highm. on Lun. 4. 
In the matter of Barker, 2 J. C. R. 232, a commission was issued 
against a party who, from age, had become incapacitated. 

(2) And such committees must give security, and be also otherwise 
proper and responsible persons so as to be sufficient to bear costs, &c. 
Jn re Frank, 2 Russ. R. 450 ; 2 Eden, supra. And, in the State of 
New-York, additional security may be required for the faithful applica- 
tion and accounting for the proceeds arising from a sale, lease or mort- 
gage. 2 R. S. 54,5 14. 

In the appointment of a committee, relations, unless there is some 
specific objections, are preferred to strangers. Ex parte Cockayne, 7 
Vet. 591 ; Ex parte Le Heup, 18 Jb. 222; Matter of Livingston, 1 



MAY BE EXHIBITED. 55 

indeed, informations have been exhibited by the 
attorney general on behalf both of idiots and lu- 
natics, considering them as under the peculiar 
protection of the crown(i), and particularly if 

(i) Att. Gen. \. Parkhurst, 1 Ca. 1 Ca. in Cha. 153. 3 Bro. P. C. 
in Cha. 112. Att. Gen. v. WoolHch, 633. Tomi. ed. 



J' C. R. 436. The same person may be committee of the person and 
of the estate; and he may liketvise be appointed guardian in a suit. 
Ex parte Broomjield, 3 B. C. C. 5 1 ; Ex parte Ludlow, 2 P. W. 
635 ; Westcomh v. Same, Dick, 2!?3. The committee aught to be 
resident within the jurisdiction of the court ; and if he goes out of it, 
he ought not to be continued in the character of committee. In such 
a case, it is his duty to give up his office. Ex parte Ord. 1 Jacob's 
R.94. 

A bill of complaint may be taken off the files of the court, if filed in 
the name of a plaintiff who was in a state of mental incapacity. Wart~ 
naby v. Wartnaby, 1 Jac. R. 3T7. 

The committee can make himself a party to a petition, without a bill 
filed, and thereby obtain an order to restrain waste on the real estate 
of the lunatic. Matter of Hallock, 7 J. C. R. 24. 

Where a committee of a luoatic sues for any thing in the right of 
the lunatic, in such case the committee, as well as the lunatic, are made 
parties. It is as needful to make the lunatic a party as an infant, 
where a suit is on his behalf. But in the case of an idiot, it must be 
otherwise. Fuller v. Lance, 1 C. C 18 n. ; Attorney General y. 
Woolrich, lb. 153. 

As to a committee's accounting, see Ex parte Wright, 2 Ves. Sen. 
25 ; Rule 154, JV. Y. Chancery ; 2 R. S. 52; 1 Brown's Pract. 506, 
Where no one can be procured to act as committee of the estate, or 
where the committee resides at a considerable distance from the estate, 
a receiver may be appointed, with a salary, upon giving such security 
as a committee does. Ex parte Warren, 10 Ves. 612 ; and see 
Ambl. 104. 

A lunatic is not a necessary party plaintiff with his committee on a 
bill to set aside an act done by the lunatic, under mental imbecility, and 
although it is the general practice to join them, it is only a matter of 
form. Ortley v. Messere, 7 J. C. R. 139. 

A committee will sometimes be appointed without a reference, 
where the property is small. In re Adams, 1 Rus. S^ Jtf. 112. 



§6 



BY WHOM A BILL 



the interests of the committee have clashed with 
those of the lunatic(/t'). But in such cases, a 
proper relator ought to he named(Z) ; and where 
a person found a lunatic has had no committee, 
such an information has been filed, and the 
[*30] court has proceeded to give ^directions 
for the care of the property of the lunatic, 
and for proper proceedings to obtain the appoint- 
ment of a committee(m). 

Persons incapable of acting for themselves^ 
though not idiots or lunatics, or infants, have been 
permitted to sue by their next friend, without the 
intervention of the attorney general(n). 

A bill may be exhibited against all bodies poli- 
tic and corporate, and all persons, as well infants, 
married women, idiots and lunatics, as those who 
are not lender the same disability, excepting only 
the king and queen(o). But to a bill filed against 
a married woman her husband must also be a par- 
ty, unless he is an exile, or has abjured the 
realm(3) ; and the committee of the estate of an 

(k) See Att. Gen. v. Panther, Lepine, a. lunatic, at the relation of 

Dick. 748. J.)hn Fox ; and also Maria Lepine 

(Z) Att. Gen. at relation of Ch-if- against Earl and Countess Howe and 

^th Vaughan, a lunatic, against others; 26 March, 1793.— 3 April^ 

Tyler and others, 11 July, 1764:. 1794. 

On motion, ordered that a [)roper re- (n) Eliz. Liner/, a J erson deaf 

lator should be appointed, who might and dumb, by her next friend, against 

be responsible to the defendants for Thomas Witherly and others. In 

the costs of the suit. See Dick. 378. chancery — Decree, 1 Dec. 1760. 

2 Eden. 230. And see Att. Gen. v. Decree on supplemental bill, 4 

Plumptree, 5 Madd. 452, though the March, 1779. See Wartnaby v, 

case of a charity information. Wartnaby, 1 Jac. R. 377.(1) 

(m) Att. Gen. on behalf of Maria (o) See Chap. ii. sect. 1.(2) 

(1) See note page 54, above. (2) Page 102. 

(3) Pain v. , Gary, 92 ; Same bonk 55 ; Clark v. Lord 

Angier, 1 C C. 41 ; Pierce v. Thornely, 2 Sim. 167. Tbis is not in- 



MAY BE EXHIBITED. 57 

idiot or lunatic must be made defendant with the 
person wliose property is under his care(l). 
Where the rights of the crown are concerned, if 
they extend only to the superintendence of a pub- 



variably tlie case, for she ma}', possibly, claim in opposition to her hus- 
band. Wyhourn v. Blount, 1 Dick. 155 ; JVewsome v. Bowyer, 3 P. 
VV. 38, note a ; Ferine v. Swaine, 1 J. C. R. 24 ; Ferguson v. Smith, 
^Ib. 139 ; and see Carey v. Whittingham, 1 S. 8; S. 163. Or, she 
maj' have been sued by her husband. Ex parte Strangeways, 3 ^tk. 
478. Perhaps they may be living separate. Barry v. Cane, 3 Mad. 
R. 472 ; and see Chambers v. Bull, 1 Anst. 269 ; Leithly v. Taylor, 
Dick. Z12; lb. 133. 143. 155; Plomerv. Plomer, 1 C. R. 68; Ormsbyv. 
White, 1 Hogan's C. R. 254. Or she or he may be lunatic ; or she 
may be deserted ; or the husband may be necessarily abroad. 1 Grant's 
Pract. (2d edit.) ; Glover v. Young, Bunb. 167; Caiter v. Carter, 1 
Paige's C. R. 463 ; Bushell v. Bushell, 1 S. 4^ S. 164. Or, she may 
be under age. 1 Vent. R. 185; Jloor v. Greenviile, Toth. 95. If a 
plea or demurrer is necessary, they must, in ordinary cases, both join. 
Pain V. , supra ; Spicer v. Pakine, Cary 39. 

(I) Sackvill Y. Ayleworth, 1 Vern. lOf) ; note 13, at p. Ill of 3 
P. WmK. 

The soundness of the observation here made, as to joining the lunatic 
with his committee as a defendant, may well be doubted ; see what 
Chancellor Kent says in The Executors of Brasher v . Van Cortlandt, 
2 J. C. R. 242, and cases there referred to ; but also see Harrison v. 
Rowan, Coxe's Digest, pi. 229. A person in the condition of a lunatid 
or idiot has been allowed to answer by guardian. Westcomb v. IVest- 
comb, Dick. 233 ; Gason v. Gamier, lb. 286 ; and see Lee v. Ryder, 
Geld. 1^ Jlad. 292; J}nonymous, cited in note B. 3 P. TT'ms. Ill ; 
Eyre v. Wake, 4 Ves. Jr. 795 ; Wilson v. Grace, 14 Ves. Jr. 171. 
Where the amount of property has been small, a guardian has been 
appointed. Ex parte Picard, 2 V. Sf B. 127. In Howlett v. tVilbra^ 
ham, 5 Mad. 423, on motion of the complainant, a guardian was ap- 
pointed to defend for a lunatic defendant. 

If the committee happens to be a defendant in his own right, the 
complainant should proceed against the lunatic, (this, by the by, would 
seem to show the latter ought to bp n party,) anJ if the committee re- 
fuses to answer for him, a new committee will be appointed. Lloyd 

8 



58 BY WHOM A BILL 

lie trust, as in the case already mentioned of a 
charity, the king's attorney general may be made 
a party to sustain those rights ; and in other cases, 
where the crown is not in possession, a title vest- 
ed in it is not impeached, and its rights are only 
incidentally concerned, it has generally b^en con- 
sidered that the king's attorney general may 
[*31] be made *a party in respect of those rights, 
and the practice has been accordingly( /?). 
But where the crown is in possession, or any title 
is vested in it which the suit seeks to divest or af- 
fect, or its rights are the immediate and sole ob- 
ject of the suit, the application must be to the 
king by petition of right(<y), upon which, how- 
ever, the crown may refer it to the chancellor to do 
right, and may direct that the attorney general 
shall be made a party to a suit for that pur- 
pose ; or a suit may be instituted in the court of 
exchequer, as a court of revenue, and general au- 

(p) See Balch v. Wastall, 1 P. Gen. mentioned in Penn against 

Wms. 445. Bolder v. Bank of En- Lord Baltimore, 1 Ves. 445, 446. 

land, 10 Ves. 352. The bill was dismissed 27 Nov. 1741, 

{q) See legal judic. in Chanc. by Lord Hardwicke. 
stated p. 18. Reeve against Att. 



V. , 2 Dick. 460. See a case where the committee was one of 

the complainants. Snell v. Hyatt, Dick. 287. 

It is doubtful how far the insolvency of a committee will be a suffi- 
cient cause for removing^ him as a party. In one case it was done ; but 
in a later case, it was not. See Ex parte J}lildmay,3 Ves. Jr. 2; 
Ex parte Proctor, 1 Swanst. C. R. 532 ; Ex parte Livingston, 1 J. C. 
R. 436. 

Where, after a decree in a suit, in which a lunatic and his committee 
are defendants, and the committee dies and a new one is appointed : a 
motion should be made for an order that the latter be named as the com- 
mittee in all the future proceedings in tiie cause. Lyon v. Mercer, I 
Sim. f S. 356. 



MAY BE EXHIBITED. 59 

ditor for the king, and relief there obtained, the 
attorney general being made a party(r). The 
queen has also the same prerogative(5)(l). 

A suit may affect the rights of persons out ot 
the jurisdiction of the court, and consequently not 
compellable to appear in it. If they cannot be 
prevailed upon to make defence to the bill, yet, if 
there are other parties, the court will in some 
cases proceed against those parties(^) ; and if the 
absent parties are merely passive objects 
of the judgment of the *court, or their [*32] 
rights are incidental to those of parties be- 
fore the court, a complete determination may be 
obtained(z*) ; but if the absent parties are to be 
active in the performance of a decree, or if they 
have rights wholly distinct from those of the other 
parties, the court cannot proceed to a determina- 
tion against them(:r). 

(r) Lord Hardwicke in Huggins 1699, on an information by the attor- 

and York-buildings company, in ney general against the trustees of a 

chancery, 24 Oct. 1746. Pawlet v. testator, his heirs at law, and others, 

Att. Gen. in Excheq. Hardres, 465. to establish a will, and a charity 

Poole V. Att. Gen. Excheq. Parker, created by it, alleging that the decree 

272. Wilkes's case, Exch. Lane, 54. was contrary to the will, and that the 

(s) 2 Roll. Ab. 213. But see University of Glasgow had not been 

Staunf. Praer. 75, 6. 9 Hen. VI, made party to the suit ; Lord Hard- 

63. Writ of annuity against Joan wicke overruled the latter objection, 

Clueen dowager of Hen. IV. as the University of Glasgow was a 

{t) Williams v. Whinyates, 2 Bro. corporation out of the reach of the 

C. C. 399. 1 Sch. & Lefr. 240. 16 process of the court, which warranted 

Ves. 326. the proceeding without making that 

(^u) In Att. Gen. a.t relation of Uni- body party to the suit. See Walley 

versity of Glasgoic against Baliol v. Whalley, 1 Vern. 487. Rogers 

College and others, in chancery, Dec. \. Linton, Bunb. 200. Quintinc v. 

11th, 1744, which was an information Yard, 1 Eq. Ca. Abr. 74. 
filed, impeaching a decree made in (.r) See F'cll v. Brown, 2 Bro. C, 

(1) In general cases affecting' the government of our own country, 
suits are commenced and defended in the name of the United Slates. 
The postmaster general sues in his own name by virtue of particular 



60 BY WHOM A BILL, &/C. 

C. 276.(1) Hence there sometimes which seems to require the interposi* 
arises an absolute defect of justice, tion of the Iegislature.(2) 



acts of congress authorizing him to do so; while, suits relating to the 
United States Bank are brought in tLe name of the president, directors 
and company of the said bank. 

(1) Bifieldv. Taylor, \ BeatlyQl. 

(2) The rules of our court of chancery, in connexion with the 
statutes of the State of New- York, have given such facihties for ad 
rertisiog absent parties and taking proceediags pro confesso in case they 
do not come in, that suggestions of their being out of the jurisdiction 
(which is necessary under ihe English practice. Edwards on Parties, 
3, 4) appears to have becoiiie of no value. 

None are parties as defendants, though named in the bill, against 
whom process is not prayed. Fawkes v. Pratt, 1 P. Wms, 593 ; 
Windsor v. Windsor, 2 Dick. 707; Coop. Eq. 16; Beames's Elem. 
Pleas, 148. 

The learned author. Lord Redesdale, when chancellor of Ireland, 
inveighed strongly against the crying grievance and system of frauds 
practised upon persons having rights but who were not made parties. 
Gifford V. Hort, 1 Sch. <^ Lef. 386. 

As to unknown persons having an interest in the subject matter, see 
Laws ofJS'. Y. 1831, p. 243; Rules 11 A, et seq. ; Hudson v. Twintngr, 
\ Taml. 315; Ely v. Broughton, 2 Sim. Sf S. 188. 



CHAPTER I. 

SECTION II. 

Of the several kinds and distinctions of Bills, 

It has been mentioned in the introduction that 
different kinds of bills are used to answer the seve- 
ral purposes of instituting an original suit, of add- 
ing to, continuing, or obtaining the benefit of a 
suit thus instituted, of instituting a cross-suit, of 
impugning the judgment of the court on a suit 
brought to a decision, and of carrying a judgment 
into execution. The several kinds of bills have 
been usually considered as capable of being ar- 
ranged under three general heads. I. Original 
bills, which relate to some matter not before liti- 
gated in the court by the same persons standing in 
the same interests. II. Bills not original, which 
are either an addition to, or a continuance of, an 
original bill, or both. III. Bills, which, though 
occasioned by, or seeking the benefit of a former 
bill, or of a decision made upon it, or attempting 
to obtain a reversal of a decision, are not consider- 
ed as a continuance of the former bill, but in the 
nature of original bills. And though this arrange- 
ment is not perhaps the most perfect, yet, as it is 
nearly just, and has been very generally adopted 
in argument, and in the books of reports and of 
practice, it will be convenient to treat of the dif- 
ferent kinds of bills with reference to it. 



62 THE SEVERAL KINDS 

[*34] *I. A bill may pray relief against an injury 
suffered, or only seek the assistance of the 
court to enable the plaintiff to defend himself 
against a possible future injury, or to support or 
defend a suit in a court of ordinary jurisdiction. Ori- 
ginal bills have therefore been again divided into 
bills praying relief, and bills not praying relief. — 
An original bill praying relief may be, 1. A bill 
praying the decree or order of the court touching 
some right claimed by the person exhibiting the 
bill, in opposition to some right claimed by the 
person against whom the bill is exhibited. 2. A 
bill of interpleader, vs^here the person exhibiting 
the bill claims no right in opposition to the rights 
claimed by the persons against whom the bill is 
exhibited, but prays the decree of the court touch- 
ing the rights of those persons, for the safety ot 
the person exhibiting the bill(l). 3. A bill pray- 
ing the writ of certiorari to remove a cause from 
an inferior court of equity. — An original bill not 
praying relief may be, 1. A bill to perpetuate the 
testimony of witnesses. 2. A bill for discovery of 
facts resting within the knowledge of the person 
against whom the bill is exhibited, or of deeds, 
writings, or other things in his custody or power.] 
II. A suit imperfect in its frame, or become so 
by accident before its end has been obtained, may, 
in many cases, be rendered perfect by a new bill, 
which is not considered as an original bill, but 
merely as an addition to or continuance of the for- 

(1) Bedell v. Hoffman, 2 Paige's C. R. 199. 



OF BILLS. 



63 



mer bill, or both. A bill of this kind may be, 
1. A supplemental bill, which is merely an 
addition to the ^original bill. 12. A biU of [*35] 
revivor, which is a continuance of the ori- 
ginal bill, when by death some party to it has be- 
come incapable of prosecuting or defending a suit, 
or a female plaintiff has by marriage incapacita- 
ted herself from suing alone. 3. A bill both of 
revivor and supplement, which continues a suit 
upon an abatement, and supplies defects arisen 
from some event subsequent to the institution of 
the suit(l). 

III. Bills for the purposes of cross litigation of 
matters already depending before the court, of 
controverting, suspending, avoiding or carrying 
into execution, a judgment of the court, or of ob- 
taining the benefit of a suit which the plaintiff is 
not entitled to add to or continue for the purpose 
of supplying any defects in it, have been general- 
ly considered under the head of bills in the nature 
of original bills, though occasioned by, or seeking 
the benefit of former bills : and may be, 1. A cross- 
bill, exhibited by the defendant in a former bill, 
against the plaintiff in the same bill, touching 
some matter in litigation in the first bill. 2. A 
bill of review, to examine and reverse a decree 
made upon a former bill, and signed by the person 
holding the great seal, and enrolled, whereby it 
has become a record of the court(2). 3. A bill in 



(1) Weslcott V. Cady, 5 J. C. R. 337, 

(2) Wiser v. Blachley and olherti,'Z lb. 488. 



64 FRAME AND END OF THE 

the nature of a bill of review, brought by a person 
not bound by the former decree. 4. A bill to im- 
peach a decree upon the ground of fraud. 5. A 
bill to suspend the operation of a decree on special 
circumstances, or to avoid it on the ground of 

matter arisen subsequent to it. 6. A bill 
[*36] to carry a decree made *in a former suit 

into execution. 7. A bill in the nature of a 
bill of revivor, to obtain the benefit of a suit after 
abatement in certain cases which do not admit of a 
continuance of the original bill. 8. A bill in the na- 
ture of a supplemental bill, to obtain the benefit of a 
suit, either after abatement in other cases which do 
not admit of a continuance of the original bill, or 
after the suit is become defective, without abate- 
ment in cases which do not admit of a supplemental 
bill to supply that defect. 



CHAPTER I 

SECTION III. 



Of the frame and end of the several kinds of 
Bills ; and of Informations. 

The several kinds of bills have been already 
considered as divided into three classes. In the 
first class have been ranked original bills ; in the 
second, bills not original ; in the third, bills in the 
nature of original bills, though occasioned by for- 
mer bills. The frame and end of the several kinds 



SEVERAL KINDS OF BILLS. #5 

of bills will be treated with reference to this dis- 
tribution, and the peculiarities of informations will 
be considered under a fourth head. 

I. Original bills have been mentioned as again 
divisible into bills praying relief, and bills not 
praying relief 

*Original bills praying relief have been [*37] 
ranked under three heads : 1. Original bills 
praying the decree of the court touching some right 
claimed by the person exhibiting the bill, in opposi- 
tion to rights claimed by the person against whom 
the bill is exhibited. 2. Bills of interpleader. And, 
3. Certiorari bills. — Bills of the first kind are the 
bills most usually exhibited in the court ; and as 
the several other kinds of bills are either conse- 
quences of this, or very similar to it in many re- 
spects, the consideration of bills of this kind will in 
a great measure involve the consideration of bills 
in general. 

1. An original bill, praying the decree of the 
court, touching rights claimed by the person exhi- 
biting the bill, in opposition to rights claimed by 
the person against whom the bill is exhibited, must 
show the rights of the plaintiff, or person exhibit- 
ing the bill; by whom, and in what manner, he is 
injured ; or in what he wants the assistance of 
the court ; and that he is without remedy, except 
in a court of equity, or at least is properly re- 
lie vable, or can be most effectual'/ relieved there. 
Having thus shown the plaintifTs title to the as- 
sistance of the court, the bill may pray, that the 
defendant, or person against whom the bill is exhi- 

9 



&6 FRAME AND END OF THE 

bited, may answer upon oath the matters charged 
against him ; and it may also pray the rehef or as- 
sistance of the court which the plaintiff's case en- 
titles him to. For these purposes the bill must pray 
that a writ, called a writ of subpcena, may issue 

under the great seal, which is the seal of the 
[*38] court, to require the defendant's *appear- 

ance, and answer to the bill ; unless the de- 
fendant has privilege of peerage, or as a lord of 
parliament, or is made a defendant as an officer 
of the crown. In the case of a peer or peeress, or 
lord of parliament, the bill must first pray the let- 
ter of the person holding the great seal, called a 
letter missive, requesting the defendant to appear 
to and answer the bill(«) ; and the writ of subpcB- 
na only in default of compliance with that request. 
And if the attorney general is made a defendant 
as an officer of the crown, the bill must pray, in- 
stead of the writ of subpoena(6), that he, being at- 
tended with a copy, may appear and put in an an- 
swer. It is usual to add to the prayer of the bill 
a general prayer of that relief which the circum- 
stances of the case may require ; that if the plain- 
tiff mistakes the relief to which he is entitled, the 
court may yet afford him that relief to which he 
has a right(c). Indeed it has been said, that a pray- 
er of general relief, without a special prayer of the 
particular relief to which the plaintiff thinks himself 

(a) This mark of courtRsy is in members of the House of Commons, 

respect of peerage generally, see Lord see Act of Union with Ireland, 39 & 

Milsington v. Earl of Portmorc, 1 40 Geo. 3, c. 67, art. 4, and Robinson 

Ves. & B. 419 ; and is to be observed v. Lord Rokeby, 8 Ves. 601. 

towards Scotch peers, see Act of (b) See Barclay v. Russell, Dick. 

Union with Scotland, 5 & 6 Anne, 729, S. C. 3 Ves. 424. 

c. 8, art; 23, and Irish peers not (c) Hollu v. Carr, 2 Mod 86. 



SEVERAL KINDS OF BILLS. 67 

entitled, is sufficient(<?) ; and that the par- 
ticular reHef which the case requires *may, [*39] 
at the hearing, be prayed at the bar(e). But 
this reHef must be agreeable to the case made by 
the bill(^), and not different from it(^) ; and the 
court will not in all cases be so indulgent as to per- 
mit a bill framed for one purpose to answer ano- 
ther, especially if the defendant may be sur- 
prised or prejudiced. If, therefore, the plaintiff 
doubts his title to the relief he wishes to pray, the 
bill may be framed with a double aspect ; that if 
the court determines against him in one view of 
the case, it may yet afford him assistance in ano- 
ther(^) (2). Upon an information by the attor- 

(d) See Cook v. Martyn, 2 Atk. 208, note. 

3. The report of this case is appa- {g) 2 Atk. 141. 3 Atk. 132. 1 

rently very inaccurate. See 1 Eden. Ves. Jr. 426. 2 Ves. 299. Birch v. 

R. 26. 11 Ves. 574.(1) Corbin, 9 Dec. 1784, in Chan. 1 Ves. 

(e) See PFtZiinson V. jBeaZ, 4 Madd. Jr. 426. Lord Walpole v . Lord Or- 

408. ford, 3 Ves. 402. Palk v. Lord 

(y) Beaumont v. Boultbee, 5 Ves. Clinton, 12 Ves. 48. 

485. Hiern V. MiU, 13 Ves. 114. (A) 2 Atk. 325 ; and see Perry v. 

2 Sch. & Lefr. 10. 729. 3 Swanst. Phelips, 17 Ves. 173. 



(1) And see JbAnson V. Johnson, 1 Munf. 549. If a party is made 
a defendant, and no relief is prayed against him, the bill will, as to 
him, be dismissed. Patlerson v. Same, 1 Hayw. 167. 

(2) Foster v. Cook, 1 Hawks' R. 509. Although a bill contain, as 
usual, a prayer for general relief, and also a prayer for specific relief, 
yet the complainant may have other specific relief, provided it be com- 
sistent with the case made by the bill and with the proofs. Wilkin v. 
Wilkin, \ J.C. R.\\\; Cook v. Mancius, 5 lb. 89 ; Allen v. Coffman, 
1 Bibb, 459 ; and see Sheppard's executors v. Starke, 3 Munf. 29 ; and 
note to I Munf. 554; Bailey v. Burton, 8 Wendell's R. 339. But, the 
general prayer must be in the disjunctive. So, if it be doubtful 
whether the facts of the case entitle the complainant to the specific re- 
lief prayed for, or to relief in some other form, his prayer concluding for 
general relief should be in the disjunctive. In such case, although the 
complainant should not be entitled to the relief specifically prayed for, 
he may, under the geBcral prayer, obtain any other specific relief coo* 



68 rilAME AND END OF THE 

ney general on behalf of a charity, the court will 
give the proper directions as to the charity, with- 
out regarding the propriety or impropriety of the 
prayer of the information. (z) 

All persons interested in the subject of the 
suit ought generally to be parties(fc)(l), if within 

(i) Att. Gen. v. Jeancs, 1 Atk. appears that the daughter was an in- 

355. 1 Ves. 43. 72. 418. Att. Gen. fant, Reg. Lib. 1783, p. 192. 

V. Breton, 2 Ves. 426. '27. 11 Ves. {k) This proposition, although un- 

247. 367. 2 Jac. & W . 370; and it doubtedly correct in relation to suits 

seems that a similar observation for relief, Pawlet v. Bishop of Lin- 

would, in some instances, apply upon coin, 2 Atk. 296. Poore v. Clark, 2 

a bill filed on behalf of an infant. Atk. 515. 1 Ves. Jr. 39. 7 Ves. 563. 

^tapilton V. Stapillon, 1 Atk. 2 ; and 1 Meriv. 262. 3 Meriv. 512, has been 

see Durant v. Durant, 1 Cox, 58, in said, but upon somewhat doubtful au- 

which, on reference to the record, it thority, not to apply where discovery 



sistent with the case made by the bill. But, where the complainant 
prays for particular relief, and for other relief in addition lliereto, he 
can have no relief inconsistent with such particular relief, although it 
should be founded upon the bill. Colton v. Ross, 2 Paige's C. R. 
396 ; and see Foster v. Cook, 1 Hawks' R. 509. 

Where three kinds of relief are prayed for in the bill, and the com- 
plainant is entitled to one of them, the defendant cannot demur. Wes- 
tern Ins. Co. of Buffalo v. Eagle Fire Ins. Co., 1 Paige's C. R. 284, 

It has been said, that the court will not grant relief which is without 
the scope of the complainant's biii, and not prayed for specifically. 
Jarman's case, 4 Monroe's R. 119 ; S. P. Withers v. Thompson, lb. 
333. But this observation, it is presumed, proves nothing : for no re- 
lief can be granted beyond the scope of the bill, nor can the prayer go 
further than such scope. 

(1) Wendell v. Van Rensselaer, 1 J. C. R. 349 ; Wilsonv. Hamil- 
ton, 9 J. R. 442 ; Bailey v. Inglee, 2 Paige's C. R. 278 ; Johnson v. 
Rankin, 2 Bibb, 184; WTielanv. Whelan, 3 Coiocn, 537 ; Fellows v. 
Fellows, 4 lb. 682 ; Cole v, Lasnier, 9 lb. 321 ; Trescnlt v. S7nilh, 1 
M' Cord's C. i2. 301 ; Osborn v. U. S. Bank, 9 Wheal. 733 ; Elmendorf 
V. Taylor, \0 lb. 152. 

Where a suit may be finally decided as between the parties litigant, 
without briogiog others before the court who would, generally speaking, 
be necessary parties, such parties may be dispensed with in the circuit 
court of the United States if its process cannot reach them, as if they 
be residents of another state. Mallow v. Hinde, 12 Wheat. 193 ; and 
Be9 Elmendorf V. Taylor, supra. The incapacity imposed on the cir^ 



SEVERAL KINDS OF BILLS. 69" 

the ^^jurisdiction of the eoiirt(/). Who [*40] 
are the necessary parties to a suit will be 
considered in the next chapter, in treating of de- 
murrers ; but if any necessary parties are omitted, 
or unnecesary parties are inserted, the court upon 
application, will, in general, permit the proper al- 
terations to be made. The cases in which this 
permission is usually granted, and the terms upon 
which it may be obtained, will be more particu- 
larly the subject of consideration in the fourth 
chapter. 

It is the practice to insert in a bill a general 
charge, that the parties named in it combine to- 
gether, and with several other persons unknown 
to the plaintiff, whose names when discovered, the 
plaintiff prays he may be at liberty to insert in the 
bill. This practice is said to have arisen from 

alone is sought. Sangosa v. E. I. where a defendant is out of the juris- 

Comp. Eq. Ca. Ab. 170.(1) diction, see 1 Sch. & Lefr. 240; 

Q) As to mode of framing the bill, Wilkinson v. Beal, 4 Madd. 408. 

cuit courts to proceed against any person residing within the United 
States, but not within the district for which the court may be holden, 
will justify them in dispensing with parties merely formal. Perhaps, in 
cases where the real merits of the cause may be determined, withoot 
essentially affecting the interests of absent persons, it may be the duty 
of the court to decree as between the parties before them. But, where 
parties are essential, and their interests maj' be affected by a decree, 
the court cannot proceed to a final decision of the cause till they are 
made parties. Russel v. Clark's executors, 7 Cranch, 98 ; and see 
Elmendorfv. Taylor, supra ; also, the late case of Vattier v. Hinde, 7 
Peters, 252. 

(1) It is presumed, that the principle laid down in Sangosa v. E. I, 
Company, wduld, in general, be right, when applied to a bill in aid of 
an action. A party who has severed in his pleading, may alone file such 
a bill. And there is no reason why he should bring in his co-defendr 
ants. It may, perhaps, be different where there is a joint liability, as 
between partners. 



70 FRAME AND END OF THE 

an idea that without such a charge parties could 
not be added to the bill by amendment ; and in 
some cases perhaps the charge has been inserted 
with a view to give the court jurisdiction. (1) It 
has been probably for this reason generally con- 
sidered, that a defendant demurring to a bill com- 
prising persons whose interests are so distinct that 
they ought not to be made parties to the same bill, 
ought to answer the bill so far as to deny the 
charge of combination. The denial of combina- 
tion usually inserted as words of course at the 

close of an answer, is a denial of unlawful 
[*41] ^combination ; and it has been determined 

that a general charge of combination need 
not be answered(m). An answer to a charge of 
unlawful combination cannot be compelled ; and 
a charge of lawful combination ought to be specific 
to render it material. For where persons have a 
common right, they may join together in a peacea- 
ble manner to defend that right ; and though some 
of them only may be sued, the rest may contribute 

(m) See Oliver v. Haywood, 1 Anstr. Exch. Rep. 82. 



(1) Barton, in his " Suiiin Equity " thus remarks upon this sentence : 
" It becomes me to bow to tftat gentleman's" (Lord Redesdale's) "more 
" extensive practical knowledge ; but I confess myself unable to appre- 
" hend what species of cases it can be to which he alludes. All cases of 
" confederacy and combination, considered simply as such, appear to be 
" equally cognizable in a court of law ; and it is extremely evident that 
" a mere allegation of confederacy or combination in a bill, without 
" other equitable matter to support it, could never authorize a court of 
" equity to exercise its extraordinary }unsd\cUoa. And in the case of 
" a peer (which further rebuts the idea of its being requisite to give 
"jurisdiction) the charge of combination is omitted." — p. 33. 

The charge of combination is often omitted in amicable suits, Wy' 
ait's P. R. 63. 



SEVERAL KINDS OF BILLS. 71 

to the defence, at their common charge(wi) : and 
if on the ground of such a combination the juris- 
diction of a court of equity is attempted to be sus- 
tained, where the jurisdiction is properly at the 
common law, the combination ought to be spe- 
cially charged, that it may appear to warrant the 
assumption of jurisdiction by a court of equity. 
From whatever cause the practice of charging 
combination has arisen, it is still adhered to, ex- 
cept in the case of a peer, who was never charged 
with combining with others to deprive the plaintiff 
of his right, either from respect to the peerage, or 
perhaps from apprehension that such a charge 
might be construed a breach of privilege(l). 

The rights of the several parties, the injury 
complained of, and every other necessary circum- 
stance, as time, place, manner, or other incidents, 
ought to be plainly, yet succinctly, alleged. What- 
ever is essential to the rights of the plaintiff, and 
is necessarily within his knowledge, ought 
to be alleged * positively (w), and with pre- [*42] 
cision(o) (2) ; but the claims of the de- 

(m) See Lord Howard v. BeU, the plaintiff is so informed. Lord 

Hob. 91. Uxbridge v. Staveland, 1 Ves. 56. 

(n) It has been determined, upon (o) See E. I. Comp. v. Henchman, 

demurrer, that it is not a sutRcient al- I Ves. Jr. 287. Cresset v. Mytton, 3 

legation of fact in a bill, to state that Bro. C. C. 481. Ryves y. jRyves, 3 



(1) Where a particular combination is alleged, a particular answer 
must be given to it. Barnard, 263. 

(2) The complainant's equity must appear in the stating pari of 
the bill. Flint v. Rives, 3 Fes. Jr. 343 ; JVorbury y. Meade, 3 Bligh, 
211; Macnamarav. Sweelman, 1 Hogan, 29. The substance of a 
bill must contain ground for relief ; and there must be equity in tbfe 
case, when fully stated and correctly applied to the proper parties, suf- 
ficient to warrant a decree. Lyon v. Tallmadge, 1 J. C. R. 184; 



72 FRAME AND END OF THE 

femfant may be stated in general terms; and if a 
matter essential to the determination of the plain- 
tiff's claims is charged to rest in the knowledge of 

Ves. 343. Mayor of London \. Le- 2 Sch. & Lefr. 280. Albrecht v. 
vy, 8 Ves. 398. Carcio v. Johnston, Sussvian, 2 Ves. and Bea. 323.(1) 

and see Shepherd v. Shepherd, 6 Day's R. 37 ; and Harding v. Hardy, 
11 Wheal. 103; Ha^thorp v. Hook, 1 Gill <^ Johns. 270. 

Facts stated in the bill constitute the only ground of relief. Skin^- 
ner v. Bailey, 7 Day's . 342. And fraud cannot be shown unless 
substantially averred in the bill. Crocker v. Higgins, lb. 342. ~~ "' 

So far as the bill acts the part of an examination, it must state all 
such matters of inducement, and such collateral circumstances as may 
tend to extract a discovery, or which may raise a presumption of the 
truth of the principal statement, even if denied by the defendant. 
Lube, 241. If it appears, upon the complainant's own case, that he is 
not entitled to the relief prayed, the court will not assist him. Stanley 
V. Robinson, 1 Russ. £(■ M. 327. 

It has been said, that facts charged in a bill, and which are within the 
defendant's knowledge, are to be taken as admitted if not denied. 
Mitchell V. Maupin, 3 Monroe's (Kentucky) R. 185 ; Ward v. Lewis, 
4 Pickering's R. 218; Gibson v. Crehore, 5 lb. 151. This would 
seem not to be the practice in the State of New-York. Brockway v. 
Copp, 3 Paige's C. R. 539. The complainant must establish them by 
evidence, lb. And the practice in Virginia is the same as in New- 
York. ( oleman v. Lynes's executor, 4 Randolph's R. 454. 

By the case o{ Edwards v. Massey, 1 Hawks' (North Carolina) Reports, 
359, it would appear, that, although a bill which is deficient in matter 
cannot be aided by the defendant ^ answer, or by proofs in the cause, 
yet when sufficient matter is stated but insufficiently verified, the want 
of sufficient verification may be supplied by proofs or admissions. The 
title to the assistance of a court must be exposed by the pleadings. 
But the style and character of pleading in equity has always been of a 
more liberal cast than that of other courts ; as mispleading in matter of 
form there has never been held to prejudice a party, provided the case 
made is right in substance and supported by proper evidence. William- 
son V. Carnan, 1 Gill Sf Johns. (Maryland) R. 184. 

(1) Harding \. Hardy, 11 Wheat. 103; J^ewkirkv. Willet, 2 J. C. 
413, S. C. 2 C. C. E. 296. A bill of discovery for matters material to 
the defence of the plaintiff in a suit at law against him, must state the 
nature of that defence. It ought to state enough to enable the court to 
see that the ends of justice require its interposition ; and the facts sought 



SEVERAL KINDS OF BILLS. 73 

the defendant, or must of necessity be within his 
knowledge, and is consequently the subject of a 
part of the discovery sought by the bill, a precise 
allegation is not required(/9). 

As the bill must be sufficient in substance, so it 
must have convenient form {q). The form of an 
original bill commonly used consists of nine 
parts(l); The first part is the address of the bill 
to the person holding the great seal, the terms of 
which are always prescribed by the court upon 
every change of the custody of the seal, or altera- 
tion in the style of the person to whom it is com- 
mitted. — In the second place are contained the 
names of the parties complainants, and their de- 
scriptions(2) (r), in which their abode is particu- 

(p) See Baring v. Nash, 1 Ves. description, so given, of a plaintiiF, 

& Bea. 551. is not considered to be an allegation 

(g) 9 Edw. IV, 41. Prac. Reg. of the truth thereof, see Albrecht v. 

67. Wy. ed. Sussman, 2 Ves. and Bea. 323. 

(r) It seems, however, that the 



to be discovered should be so far stated as to show their pertinency and 
relevancy, M-Inlyre v. Mancius, 3 J. C. R. 45, S. Con appeal, 16 J. 
R. 592; Gelston v. Hoijl, 1 J. C.R. 543; Leggettv. Postley, 2 Paige's 
C. R. 599. 

(1) This division of a bill into nine parts is considered by Lubi as 
"illogical and incorrect." He makes only four, thus: 1. The cir- 
cumstantial statement of the relation., including the inducement or io-^ 
troductory part. 2. The incidents which produce the grievance com- 
plained of, including the requests made to the defendant, and his 
refusil. 3. The statement of such collateral circumstances, if neces- 
sary, by way of charge, as may compel the defendant to acknowledge 
the grievance, or which may anticipate and controvert his defences 
4. And lastly, by reason of the foregoing complaint, and of the want of 
adequate remedy at common law, it concludes with a petition for the 
subpoena, to the end that the defendant may answer the premises and 
the c curt decree relief. — p. 242. 

(2) See the different forms of introduction, names and descriptions 
in chapter i. of fViUis's Equity Pleadings ; and 1 Equity Draftsman, 
{2d edit.) chap, i, 

10 



74 FRAME AND END OF THE 

larly required to be set forth, that the court, and 
the parties defendants to the bill, may know 
where to resort to compel obedience to any 
[*43] *order or process of the court, and particu- 
larly for payment of any costs which may 
be awarded against the plaintiffs, or to punish any 
improper conduct in the course of the suit. — The 
third part contains the case of the plaintiffs, and is 
commonly called the stating-part of the bill(5). — 
In the fourth place is the general charge of con- 
federacy against the persons complained of, which 
has been already mentioned as commonly insert- 
ed, though it seems unnecessary. — Fifthly, if the 
plaintiffs are aware of a defence which may be 
made, and have any matter to allege which may 
avoid it, the general charge of confederacy is usu- 
ally followed by an allegation that the defendants 
pretend to set up the matter of their defence, and 
by a charge of the matter which may be used to 
avoid it. This is commonly called the charging- 
part of the bill, and is sometimes also used for the 
purpose of obtaining a discovery of the nature of 
the defendant's case, or to put in issue some mat- 
ter which it is not for the interest of the plaintiffs 
to admit; for which purpose the charge of pre- 
tence of the defendant is held to be sufficient(<). 
Thus, if a bill is filed on any equitable ground by 
an heir, who apprehends his ancestor has m.ade a 
will, he may state his title as heir ; and alleging 
the will by way of pretence of the defendant's 
claiming under it, make it a part of the case with- 

(s) See 11 Ves. 574. (t) 3 Atk. 626. 11 Ves. 575. See 

also Flint v. Field, 2 Anstr. 543. 



SEVERAL KINDS OF BILLS. 75 

out admitting it(l). The sixth part of the bill is 
intended to give jurisdiction of the suit to the 
court by a general averment that the acts com- 
plained of are contrary to equity, and tend 
to the *injury of the complainants, and that [*44] 
they have no remedy, or not a complete re- 



(1) See a precedeut of such an allegation, 1 Equity Draftsman, 
(2d edit.) 321. The charging- part of a bill, says Willis, p. 19, is often 
omitted. Until a comparatively modern period, a bill contained little 
more than the slating part, with a simple prayer, that the defendant 
might answer the matters contained in it, and for relief; and it is 
certain that the late Lord Kenyon in the bills he drew, when at the bar, 
never put in the charging part ; which does little more than unfold and 
enlarge the statement. See Partridge v. Haycraft, 11 Ves. 574, 5. 

It may not be amiss to give here the form of an ancient bill. We 
copy it from the proceedings of the Record Commission. It was filed 
in the reign of Henry V., to compel a defendant to surrender a messuage 
which was the inheritance of llie plaintiff, Katharine. The reader 
will perceive in how small a compass the whole is contained ; and yet 
how completely it takes in the equity of the case : 

" To the reverend father in God, the Bishop of Winchester, Chancellor of 
" England ; 
" Beseecheth humbly your poor orator, John Bell of Calls, soldier, and 
'• Katharine, his wife, that, whereas William atte Wode, otherwise called 
" William atte Doune of Rochester, father to the said Katharine, since dead, 
" heretofore was seized in his demesne as of fee of one messuage with the ap- 
" purtenances in Rochester, situated in the churchyard there, the which, 
" William, in the feast of St. Michael, in the twenty-second year of the reign 
" of King Richard the Second, since the conquest, let to farm to one Simond 
" Stelhard of Gillingham, the same messuage with the appurtenance for term 
" of seven years then next ensuing, for a certain sum to him annually to be 
" paid ; the which Simon within the first two years was ousted by the ex- 
" ecutors of the said William, because he would not attorn to them in the 
" payment of the rent of the same messuage, the which messuage since then 
" was several times alienated to divers persons, and now so it is, very gracious 
" lord, that one Piers Savage, now occupier of the same messuage, for the 
" which messuage he hath not [)aid more than one mark, hath oftentimes 
" been required to deliver to the same John and Katharine, this same mes- 
" suage as the heritage of the same Katharine, and he hath not delivered it 
" to them nor yet will, but detains it in destruction of their poor estate and 
" perpetual disherison of the same Katharine, if they should not obtain 
" remedy by your gracious aid in this behalf and the which John and Katha- 
" rine are so poor, and the said John so ill, that they cannot pursue the com- 
" mon law. Please your very gracious lordship to consider the premises, and 
" thereupon to grant a writ directed to the said Piers, to appear before you at 
" a certain day upon a certain pain by you to be limited, for to answer of the 
" matter aforesaid, and to do right as good conscience demandeth it, and this 
" for love of God, and in work of charity." 



76 FRAME AND END OF THE 

medy, without the assistance of the coqrt ; but 
this averment must be supported by the case shown 
in the bill, from which it must be apparent that 
the court has jurisdiction. — The bill having shown 
the title of the persons complaining to relief, and 
that the court has the proper jurisdiction for that 
purpose, in the seventh place prays, that the par- 
ties complained of may answer all the matters 
contained in the former part of the bill, not only 
according to their positive knowledge of the facts 
stated, but also according to their remembrance, 
to the information they may have received, and 
the belief they are enabled to form on the subject. 
A principal end of an answer upon the oath of the 
defendants, is to supply proof of the matters ne-^ 
cessary to support the case of the plaintiffs ; and 
it is therefore required of the defendants, either to 
admit or deny all the facts set forth in the bill, 
with their attending circumstances, or to deny 
having any knowledge or information on the sub- 
ject, or any recollection of it, and also to declare 
themselves unable to form any belief concerning 
it. But as experience has proved that the sub- 
stance of the matters stated and charged in a bill 
may frequently be evaded by answering according 
to the letter only, it has become a practice to add 
to the general requisition that the defendants 
should answer the contents of the bill, a repetition, 
by way of interrogatory, of the matters most es- 
sential to be answered, adding to the inquiry after 
each fact an inquiry of the several circumstances 
which may be attendant upon it, and the 
[*45] variations to Hvhich it may be subject, 



SEVERAL KINDS OF BILLS. 77 

with a view to prevent evasion, and compel 
a full answer. This is commonly termed the 
interrogating-part of the bill ; and as it was origi- 
nally used only to compel a full answer to the 
matters contained in the former part of the bill, it 
must be founded on those matters(t^). Therefore, 
if there is nothing in the prior part of the bill to 
warrant an interrogatory, the defendant is not 
compellable to answer it : a practice necessary for 
the preservation of form and order in the plead- 
ings, and particularly to keep the answer to the 
matters put in issue by the bill. But a variety of 
questions may be founded on a single charge, if 
they are relevant to it(a:) (2). Thus, if a bill is 

(u) 1 Ves. 538. 6 Ves. 62. Faul- v. Richardson, 11 Ves. 373. II Veo, 
der V. Stuart, 11 Ves. 296. Bullock 574.(1) 

(x) 1 Ves. 318. 11 Ves. 301. 376. 

(1) And see notes to Jerrard v. Sanders, 4 Bro. C. C. 322. (Eden's 
edit.) 

(2) At first view the repetition of the whole bill, by way of interro- 
gation, would appear a very useless prolixity. But experience has 
proved the utility of this practice, beyond cavil : for the contrary 
method would not fail to produce still greater expense and delay to the 
parties, by occasioning frequent and numerous exceptions and amend- 
ments. The statement must, of necessity, be direct and positive ; and 
if the defendant thought it his interest to do so, he might content him- 
self with answering it accoiding to the letter. The great object of the 
interrogating part of a bill is, to preclude evasiveness in the answer; 
and the whole attention of the draftsman must be turned to this single 
point, of putting the question in every variety of form, to elicit a full 
and definite reply, and (o prevent the defendant's having any loop-hole 
to escape upon a negative pregnant. In fact, this part of the bill is 
altogether subservient to the office which the bill performs, of an ex- 
amination ; and should, therefore, omit nothing essential to the proof 
and elucidation of the statement. Lube, 271 — 2. 

A defendant is not bound to answer interrogatories asking a disclo- 
sure of matter no way connected with or material to the case. Hagr 
thorp V. Hook, 1 Gill Sf Johns. 270. 



78 FRAME AND END OF THE 

filed against an executor for an account of the 
personal estate of his testator, upon the single 
charge that he lias proved the will may be founded 
every inquiry which may be necessary to ascer- 
tain the amount of the estate, its value, the dispo- 
sition made of it, the situation of any part remain- 
ing undisposed of, the debts -of the testator, and 
any other circumstance leading to the account re- 
quired(l). The prayer of relief is the next and 
eighth part of the bill, and is varied according to 
the case made, concluding always with a prayer 
of general relief, at the discretion of the court(2/). 
To attain all the ends of the bill, it, ninthly, and 

lastly, prays that process may issue(2^) re- 
[*46] quiring the defendants to appear to and *an- 

swer the bill, and abide the determination 

<y) Vide sup. p. 38. Fawkes v; Pratt, 1 P. Wms. 593 ; 

(zj They alone are defendants and Windsor v. Windsor, Dick, 
against whom process is prayed. See 707.(2) 

(1) See a precedent. Willis, 186. 

(2) A person does not become a party merely because his name is 
mentioned in it. By llie English practice, the plaintiff may complain 
and tell stories of whom he pleases, but they only are defendants against 
whom process is prayed, issued and served. And see Elmendorf v. 
Delancey, Hopk. 555 ; Executors of Brasher v. Van Cortlandt, 
2 J. C. R. 244 ; Bond v. Hpudricks, 1 Marsh. 594 ; Windsor 
V. Windsor, 2 Dick. 707 ; JVeve v. Weston, 3 Atk. 547 ; Peach 
V. Vintner, 1 Ck. R. 252; Verplunck v. Mercantile Ins. Co., 2 
Paige, 438 ; Lyle v. Bradford, 7 Monroe, 113. In the State of New- 
York, the writ of subpoena is issued of course ; and, therefore, a formal 
prayer in the bill is not necessary to entitle the complainant to the pro- 
cess of the court. But still it is necessary that every bill should clearly 
display the persons who arc impleaded as defendants. Elmendorf v. 
Delancey, supra. Thus, where there was no prayer of process against 
a corporation by its corporate name, but only against the officers there- 
of, and the corporation was not described in the bill as being a party 
thereto ; it was held, that the corporation was not before the court as a 
party to the suit. Verplanck v. Mercantile Ins. Co. supra. 



SEVERAL KINDS OF BILLS. 1f§ 

of the court on the subject ; adding, in case any 
defendant has privilege of peerage, or is a lord of 
parliament, a prayer for a letter missive before the 
prayer of process ; and in case the attorney gene- 
ral, as an officer of the crown, is made a defend- 
ant, the bill, as before observed, instead of praying 
process against him, prays that he may answer it 
upon being attended with a copy(l). — For the 
purpose of preserving property in dispute pending 
a suit, or to prevent evasion of justice, the court 
either makes a special order on the subject, or is- 
sues a provisional writ ; as the writ of injunction, 
to restrain the defendant from proceeding at the 
common law against the plaintiff, or from com- 
mitting waste, or doing any injurious act(z) ; the 
writ of ne exeat regno to restrain the defendant 
from avoiding the plaintiff's demands by quitting 
the kingdom(a) ; and other writs of a simi- 

(z) It is a general rule, that the for by bill. Anon. 6. Madd. 276 ;• 

writ of injunction will not be granted unless the application be made in a; 

unless prayed for by a bill which is cause depending. Collinson v. , 

already filed. Savory v. Dyer, Ambl. 18 Ves. 353 ; Moore v. Hudson, & 

70, or under special circumstances, Madd. 218 ; see further on the sul> 

which the party applying undertakes ject of this writ. Hydey. Whitfieldf 

to file forthwith. M'Namara v. Ar- 19 Ves. 342. Baynes v. Wyse, 2' 

//lur, 2 Ball &B. 349; but there are Mcriv. 472. Flack v. Holm, 1 Jac. 

exceptions to this general rule, see & W. 405, and the cases therein- 

Wright V. Atkyns, 1 Ves. & B. 313. cited. Leake v. Leake, 1 Jac. & W. 

Casamajor v. Strode, 1 Sim. & Stu. 605. Graves v. Griffith, 1 Jac. & W.. 

381. Amory v. Brodrick, 1 Jac. R. 646. Blaydes v. Calvert, 2 Jac. & 

530. W. 211. Pannell v. Tayler, 1 

(a) It seems requisite that the writ Turn. R. 96.(2) 
of ne exeat regno should be prayed 

(1) See forms of prayer. Willis, 7; Equity Draft (2d edit.) 6, 7. 

( 2 Grant v. Grant, 3 Russ. 598. The object of the writ of ne 
exeat is to obtain equitable bail, and may be applied for in any stage of 
the suit. In Stewart v. Stewart, \ B. Sf B. 73, a ne exeat was granted 
against a complainant who was about to leave the country before the' 
decree for costs could be made effectual against him. Dunham t. 



80 FRAME AND END OF THE 

[*47] lar nature. When *a bill seeks to obtain 
the special order of the court, or a provi- 
sional writ, for any of these purposes, it is usual 
to insert, immediately before the prayer of pro- 
cess, a prayer for the order or particular writ 
which the case requires ; and the bill is then com- 
monly named from the writ so prayed, as an in- 
junction-bill, or a bill for a writ of ne exeat regno. 
Sometimes the writ of injunction is sought, not 
as a provisional remedy merely, but as a continu- 
ed protection to the rights of the plaintiff; and 
the prayer of the bill must then be framed accord- 
ingly. 

These are the formal parts of an original bill as 
usually framed. Some of them are not essential, 
and particularly it is in the discretion of the person 
who prepares the bill, to allege any pretence of 
the defendant, in opposition to the plaintiff's 
claims, or to interrogate the defendant specially. 
The indiscriminate use of these parts of a bill in all 
cases has given rise to a common reproach to prac- 



Jackson, 1 Paige's C. R. 629 ; Mitchell v. Bimce, 2 lb. 606. The 
debt for which the writ issues must be equitable, (save in a matter of 
account), must be due, and must be such a debt that the sum to be 
marked upon the writ can be ascertained. Boehm v. Wood, 1 Turn. 
8f R. 332 ; Seymour v. Hazard, 1 J. C. R. 1 ; Porter v. Spencer, 2 
lb. 169 ; Smedburg v. Mark, 6 76. 138 ; Mitchell v. Bunce, supra. 
To sustain the application for a vrrit of ne exeat, sufficient equity must 
appear on the face of the bill. Woodward v. Shatzell, 3 J. C. R. 412. 
It seems, that a writ of ne exeat is not granted on petition and motion 
only, without a bill being previously filed. Mattocks v. Tremain, lb. 
75. In the state of New-York, the writ of ne exeat is not a preroga- 
tive writ. In a proper case this writ is of right, and not discretionary. 
Gilbert r. Colt, Hopk. R. 496. 



BEVEllAL KllNDS OF BILLS. 81 

tisers in this line, that every bill contains the same 
story three times told(l). In the hurry of busi- 
ness it may be difhcult to avoid giving ground for 
the reproach ; but in a bill prepared with attention, 
the parts will be found to be perfectly distinct, 
and to have their separate and necessary opera- 
tion(2). 

The form of every kind of bill bears a riesem- 
blance to that of an original bill ; but there are 
necessarily some variations, either arising from the 
purposes for which the bill is framed, or the cir- 
cumstances under which it is exhibited ; and those 
variations will be noticed, together with the pecu- 
liarities attending each kind of bill. 

*Every bill must be signed by counsel [*48] 
(a); and if it contains matter criminal, im- 

(o) Dillon V. Francis, Dick. 68. rity, that, judging from 'wrilten iil- 

French v. Dear, 5 Ves. 547. 2 Ves. struct ions laid betcre him of the case 

«& B. 358. Kirkley v. Burton, 5 of th(; defendant as well as of the 

Madd. 378. n. Webster v. 7"h ret/all, plairivifl', there appeared to him, at 

1 Sim. & Stu. 135. Pill v. Alacklew, the time of framing it, good ground 

ISim. &Slu. 13fi. n. Lord Eldon of suit. 3d June, 1826. MSS. And 

declared that the signature of counsel see 3 Ves. 501. 
to a bill is to be regarded as a secu- 



(1) See Macnamara v. Sweelman, 1 Hngan, 29. 

(2) The framing of bills is usually the province of the junior coun- 
sel ; it is of great importance, and requires much knowledge and judg- 
ment. In n I otiier science is so much expected from the younger 
members. In all perplexed and difficult qucblions, it is prudent to have 
the opinion of some senior counsel upon the fitness of the bill for its in- 
tended purpose ; it may ultimately save much expense and disappoint-' 
ment. I have heard Lord Eldon jocosely observe, that Lord Thurlow 
thought a machine might be invented for the drawing of bills. But ia 
this sarcasm, that great judge too much underrated the knowledge, 
judgment and experience, requisite in the framing of bills in matters of 
importance. With more truth it has been remarked, " that the mere 
"form of bringing a question before a court, is of itself a science, an 
" art less understood and more difficult to learn, than the constructioa 

11 



62 FRAME AND END OF THfi 

pertinent(l), or scandalous, such matter may 
be expunged, and the counsel ordered to pay costs 
to the party aggrieved(6). But nothing relevant 
is considered as scandalous(c). 

2. Where two or more(<Z) persons claim(6), the 
same thing by different or separate interests(/), 
and another person, not knowing to which of the 
claimants he ought of right to render a debt or 

duty(^), or to deliver property in his cus- 
[*49] tody(/i), fears he may *be hurt by some of 

them(z), he may exhibit a bill of inter- 
pleader agains them(/c). In this bill he must state 

(6) Ord. in Cha. Ed. Bea. 165. (g) 1 Eq. Ca. Abr. 80. 2Ves. Jr. 

Emerson v. Dallison, 1 Ch. Rep. 310 ; and see Farebrother v. Prat- 

194. 6 Madd.252. tent, 1 Dan. Exch. R. 64. Farehro- 

(c) 2 Ves. 24. 15 Ves. 477. ther v. Harris, ibid. 68. 

\d) Angell v. Hadden, 15 Ves. (/^) This will not extend to caseB 

244. of bailment where the parties may be 

(e) See 2 Ves. Jr. 107. 15 Ves. compelled to interplead at law. See 

245. Stevenson v. Anderson, 2 Ves. Langston v. Boylston, 2 Ves. Jr. 
& B. 407. Morgan v. Marsack,2 101. 1 Meriv. 405. It may be ob- 
Meriv. 107. served that he must not himself claim 

(f) And this may be where the any interest in the property. Mit- 
claim of one is by virtue of an alleged chell v. Hayne, 2 Sim. & Stu. 63. 
legal, and that of the other upon an (t) 1 Eq. Ca. Ab. 80.(2) 

alleged equitable, right. Paris V. Gil- {k) 2 Eq Ca. Ab. 173. Cooper 
ham. Coop. R. 56. Martinius v. v. Ckitty, 1 Burr. 20, and see ib. 37. 
Helmuth, 2 Ves. & B. 412. (2d edit.) Prac. Reg. 78. Wy. ed.(3) 
Morgan v. Marsack, 2 Meriv. 107. 
•_^ 

" and use of the most complicated machine, or even the motions of the 
" heavenly bodies." jyiaddock, vol. ii. p. 167. 

(1) " The word impertinent by the ancient jurisconsults, or law 
" counsellors, who gave their opinions on cases, was used merely in 
*' opposition io pertinent — ratio per tineiis is a pertinent reason, that is, a 
'« reason pertaining to the cause in question ; and a ratio impertinens, 
" an impertinent reason, is an argument not pertaining to the subject." 
D^ Israeli's 2d series Curiosities of Lit, vol. ii. p. 22. And see note to 
page 313, j3o«<. 

(2) Morris v. Barclay, 2 J. J. Marshall, 375. 

(3) Bedell v. Hoffman, 2 Paige's C. R. 199. And see page 141, 
post. For form of such a bill, see Willis on Equity Pleading, p. 303, 
and observe the notes there ; also 1 Equity Drafts. 248. (2d edit.) 
And see also p. 142, \Ai,post. 



SEVERAL KINDS OF BILLS. 83 

his own rights, and their several claims ; and pray 
that they may interplead, so that the court may 
adjudge to whom the thing belongs, and he may 
be indemnified. If any suits at law are brought 
against him, he may also pray that the claimants 
may be restrained from proceeding till the right 
is determined(Z) (1). 

As the sole ground on which the jurisdiction of 
the court in this case is supported is the danger 
of injury to the plaintiff from the doubtful titles of 
the defendants, the court v/ill not permit the pro- 
ceeding to be used collusively to give an advan- 
tage to either party, nor will it perrpit the plain- 
tiff to delay the payment of money due from 
him, by suggesting a doubt to whom it is due ; 
therefore, to a bill of interpleader the plaintiff 
must annex an affidavit that there is no collusion 
between him and any of the parties(/>i) ; and if 

(I) Prac. Reg. 78. Wy. ed. E. I. (m) 2 Eq. Ca. Ab. 173. Erring- 

Comp. V. Edwards, 18 Ves. 376. ion v. Att. Gen. Bunb. 303. 2 Ves; 

Croggin V. Symons, 3 Madd. 130. & B. 410. 1 Jac. R. 205.(2) 
See 1 Jac. R. 205. 

(1) Jeremy's Eq. Juris. 346. And such a bill may be filed, although 
the claim of one of the defendants is actionable at law, and that of the 
other of equitable cognizance. Richards v. Salter, 6 J. C. R. 445 ; yet 
see Barclay v. Curtis, 9 Price, 661. But, a bill of interpleader should 
not be filed except in cases where the complainant can, in no other way, 
be protected from an unjust litigatijn in which he has no interest. 
Bedell v. Hoffman, 2 Paige's C. R. 199. If the complainant has paid 
over money to one defendant under a claim to which he was bound to 
submit, this will not exclude him from filing such a bill. JSTash v. 
Smith, 6 Connecticut R. 421. A mere suggestion of a doubt as to who 
is entitled to money due by the plaintiff, is not sufiBcient to sustain a 
bill of interpleader. Tobin v. Wilson, 3 J. J. Marshall's R. 67. It 
is observable that on a bill of this kind the court will not grant an in- 
junction. Croggon V. Symons, 3 Madd. 130, and cases there. 

(2) And see p. 142, \ A3, post. 



84 FRAME AND END OF THE 

any money is due from him he must bring it into 
court, or at least offer so to do by his bill(w). 
[*50] *3. When an equitable right is sued 
for in an inferior court of equity, and by 
means of the limited jurisdiction of the court the 
defendant cannot have complete justice, or the 
cause is without the jurisdiction of the inferior 
court; the defendant(o) may file a bill in chance- 
ry, praying a special writ, called a writ of certio- 
rari, to remove the cause into the court of chan- 
ceryQ:?). This species of bill, having no other ob- 
ject than to remove a cause from an inferior court 
of equity, merely states the proceedings in the in- 
ferior court, shows the incompetency of that court, 
and prays the writ of certiorari. It does not pray 
that the defendant may answer, or even appear to 
the bill, and consequently it prays no writ of sub- 
poena(g'). The proceedings upon the bill are pe- 

(n) (l/Prac. Reg- 79. W_y. ed. the suit is money, and the same has 

Earl of Thanet v. Paterson, 3 Bar- l)ecn y)aicl into court, and the cause 

nard, 247. 2 Ves. Jr. lOD. Burnett heard, the suit is at an end, so far as 

V. .Anderson, 1 Meriv. 405. Warirtg- the plaintiff' is concerned. See Anon. 

ton\. Wheatstone, 1 Jac. R. 202. 1 Vern. 351. 3 Barnard, 250.(3) 

E. I. Comp. V. Edwards, 18 Ves. (o) Sowton v. Cutler, 2 Chan. 

376. And see Statham v. Hall, 1 Rep. 108. 

Turn. R. 30. In some instances it (p) Prac. Reg. 41. Boh. Priv. 

seems, that if an injunction should Lond. 2[)1. Hilton v. Lawson, Ca.- 

have been prayed, it would not be ry's Rep. 48. 1 Vern. 178. 

f ranted unless the money should (7) There are cases mentioned in 

ave been actually paid into court, the books apparently to the contrary j 

Dxmgey v. Angove, 3 Bro. C. C. but they .'^eem not to have been cases 

36(2). And it may be observed, that of bills praying merely the writ of cer- 

where the whole subject matter of tiorari. See 1 Ca. in Cha. 31. 

(1) The motion (o pay in the money mnj- be grounded upon the bilJ 
alone. There is no occasion for an affidavit of facts. Walbank v. 
Sparks, ? Sim. 385. 

(2) See the case of Clindtnnin v. OKcefe. ] Hogan. 118; and 
yicary v. Widger, 1 Sim. 15. 

(3) In general, on a bill of inlerpleadcr, the plaiolifTs will be al-. 
lowed their costs out of the fund, but if the money has not been brought 



SETERAL KINDS OF BILLS. ^ 

culiar, and are particularly mentioned in the 
books which treat of the practice of the court(r)(l). 

It may seem improper to consider certio- 
rari bills under the *head of bills praying re- [*51] 
lief; but as they always allege some in- 
competency of the inferior court, or injustice in 
its proceedings(5), and seek relief against that in- 
competency or injustice, they seem more properly 
to come into consideration under this head than 
under any other. In case the court of chancery 
removes the cause from the inferior court, the bill 
exhibited in that court is considered as an origi- 
nal bill in the court of chancery, and is proceed- 
ed upon as such. 

Original bills not praying relief have been al- 
ready mentioned to be of two kinds : 1, bills to per- 
petuate the testimony of witnesses ; and 2, bills of 
discovery. 

1. A bill to perpetuate the testimony of wit- 
nesses must state the matter touching which the 
plaintiff is desirous of giving evidence, and must 
show that he has some interest in the subject(<), 

(r) Prac. Re§. 8-2. Wy. ed. Ste- Temp. Finch. 391. Smith v. Ait. 

phenson v. Houlditch, 2 Vern. 491. Gen. Mich. 1777, in Chan. As to 

Woodcraft v. Kinaston, 2 Alk. 317. the nature of the interest which is 

Pierce v. Thomas, I Jac. R. 54. sufficient whereupon to institute such 

Edwards v. Bowen, 2 Sim. & Stu. a suit, see 6 Ves. 260, 261. Lord 

514. Dursley v. Pitzhardinge. 6 Ves. 251, 

(s) 1 Vern. 442. AUan v. Allan, 15 Ves. liSO. 

(f) Mason v. Goodhurnc, Rep. 



into court, they must pay interest upon it. Spring v. 5. C. Ins. Co, 
8 Wheat. 268. 

(1) This species of bill is useless in the State of New-York. There 
are no inferior courts of equity. The vice-chancellors have, within 
their circuit, all the original jurisdiction and powers of the chancellor. 
2jR. S, 168, {2. 



86 FRAME AND END OF THE 

and pray leave to examine witnesses touching the 
matter so stated, to the end that their testimony 
may be preserved and perpetuated(M) (1). 

The bill ought also to show that the 
[*52] facts to * which the testimony of the wit- 
nesses proposed to be examined is concei- 
ved to relate cannot be immediately investigated 
in a court of law, as in the case of a person in pos- 
session without disturbance(:r) ; or that before the 
facts can be investigated in a court of law the evi- 
dence of a material witness is likely to be lost, by 
his death, or departure from the realm(2/) (3). 



(u) . 
1 Sch. 



Rose V. Gannel, 3 Atk. 439. 1 Sch. & Lefr. 316. Morrison v. 

& Lefr. 316. As relief is not Arnold, 19 Ves. 670. 

prayed by a bill to perpetuate the tes- (x) See Duke of Dorset v. Girdler, 

tiniony of witnesses,i^2) Dalion v. Prec. in Cha. 531. 1 Sim. & Stu. 

Thomson, Dick. 97, the suit is ter- 88. 

minated by their examination ; and (y) According to the latter part of 

of cour.se, therefore, is not brought to this proposition the right of action 

a hearing. Hall v. Hoddcsdon, 2 P. may be either in the plaintiff or de- 

Wms. 162. 2 Ves. 497. Anon, fendant in equity. With reference 

Ambl. 237. Vaughan v. Fitzgerald, to the defendant, the time of bringing 



(1) Jeremy's Eq. Jur. 273; Jerome v. Same, 5 Conn. R. 252; 
J\lay V. Armstrong, 3 J. J. Marshall's R. 261. Such a bill must be 
sworn to. Laight v. Morgan, 1 J. C. 429 ; S. C. 2 C. C. E. 344. 
And see the text above, p. 52. For a form of this affidavit, 2 Madd. 
Ch. R. 252. See a precedent of such a bill in Willis on Pleading, 
p. 310; and observe the notes and cases there; also, a precedent in 
the Equity Drafts. (2d edit.) vol. i. p. 465. 

It is presumed that a bill to perpetuate testimony would hardly be 
proper in the chancery of the Stale of New-York. The matter is ef- 
fected through an application to a master and by affidavit. 2 R. S. 398. 

(2) Jerome v. Same, supra ; Miller v. Sharp, 3 Randolph's R. 41. 

(3) Or that such witness is beyond sea ; or that the facts to be ex- 
amined to are of great importance, or no other but a single witness, 
although neither aged nor infirm, {Shirley v. Earl Ferrers, 3 P. Wms. 
77 ; Pearson v. Ward, 4 Cox, 17 7 ; Hankin v. Middledilch, 2 Br. C- 
C' 640) ; or, only two witnesses {Lord Cholmondeley v. Lord Orford, 
4 B. C. C. 156) to be examined, is or are privy to such facts whereby 
the complainant is iu danger of losing bis or their testimony. 



SEVERAL KINDS OF BILLS. 8*7 

To avoid objection to a bill framed on the latter 
ground, it seems proper to annex to it an affidavit 
of the circumstances by which the evidence in- 
tended to be perpetuated is in danger of 
being lost(2r) ; a * practice adopted in other [*53] 
cases of bills which have a tendency to 
change the jurisdiction of a subject from a court 
of law to a court of equity, and which will be af- 
terwards more particularly noticed. It seems 
another requisite to a bill of this kind that it 
should state that the defendant has, or that he 
pretends to have, or that he claims, an interest to 
contest the title of the plaintiff in the subject of 
the proposed testimony («). 

2. Every bill is in reality a bill of discovery ; 
but the species of bill usually distinguished by 
that title is a bill for discovery of facts resting in 
the knowledge of the defendant(l), or of deeds or 

the action depending upon his will, of trial, 1 Sim. & Stu. 90, in which 

the situation of the plaintifT would case it seems that it ought to be stated 

be similar to that intimated in the in the bill that the action was brought 

former part of the proposition in the before the same was filed. AngcU'v. 

text, 1 Sim. & Stu. 89 ; and with re- Angell, 1 Sim. & Stu. 83. On the 

spect to the plaintiff, it must be un- general subject, see the cases cited, 1 

derstood to relate to the case of his Sim. & Stu. 93, note, and I'eale v. 

not being able at present to sustain Teale, 1 Sim. & Stn. 385. 
an action. Cox v. Colley, Dick. 55. {z) Earl of Suffolk v. Green, 1 

1 Sim. & Stu. 114 ; for, if he should Atk. 450. An afhdavit of like cir- 

have such present right, his object cuinstances is also requisite, where 

could only be what is technically the object is merely the examinatjon 

termed an examination de bene esse, of the witnesses de bene esse. An- 

upon the ground of his having only gell v. Angell, 1 Sim. & Stu. 83 ; and 

one witness to a matter on which his see Philips v. Carew, 1 P. Wms. 

claim depends, or, if he have more, 117. Shirley v. Earl Ferrers, 3 P. 

on the ground of their being aged, or Wms. 77. 

too ill or infirm to attend in a court (a) See Lord Dursley v. FitzhaX' 

of law, and that he is therefore likely dinge, G Ves. 251. 
to lose their testimony before the time 

(1) In order to give jurisdiction, on account of the defect of proof, 
the fact sought to be discovered must restexclusi\ < ly in the defendant's 
knowledge and be susceptible of no other pror^f; and must be so al« 
leged. Emerson v. Staton, 3 Monroe's (Kentucky) R. 117. 



88 FRAME AND END OF THE 

writings, or other things in his custody or powef^ 
and seeking no rehef'in consequence of the disco- 
very, though it may pray the stay of proceedings 
at law till the discovery should be made. This 
bill is commonly used in aid of the jurisdiction of 
some other court, as to enable the plaintiff to pro- 
secute or defend an action at law(6), a proceeding 
before the king in council(c), or any other legal 
proceeding of a nature merely civil(rf) before a 
jurisdiction which cannot compel a discovery on 
oath(e) ; except that the court has in some instan- 
ces refused to give this aid to the jurisdiction of 
inferior courts(y). Any person in possession of 
an estate, as tenant or otherwise, may file 
[*54] *a bill against a stranger, bringing an eject- 
ment, to discover the title under which the 
ejectment may be brought(^), though the plaintiff 
may not claim any title beyond that of mere te- 
nant or occupant. A bill of this nature must state 
the matter touching which a discovery is sought, 
the interest of the plaintiff and defendant in the 
subject, and the right of the first to require the 
discovery from the other(/i). 

A bill seeking a discovery of deeds or writings 
sometimes prays relief, founded on the deeds or 
writings of which the discovery is sought(2). 

(b) 5 MadJ. 18. (/) 1 Ves. 205. 

(c) 1 Ves. 205. (g) 1 Ves. 24i). 

fd) 2 Ves. 398. (A) Cardale v. Watkins, 5 Madd. 

(e) Dunn v. Coates, 1 Atk. 288. 18; and see yioodaly v. JMoreton, 

1 Yes. 205. Anon. 2 Ves. 451. Dick. 652, S. C. 1 Bro. C. C. 468.(1) 

(1) And Jeremy's Eq. Juris. 257. 

2) See the form of such a bill and cases referred (o. Willis on 
Equity Pleading, 13. 27. And for further comments on this species of 
bill, p. \Qb,post. 



SEVERAL KINDS OF BILLS. fS9 

If the relief so prayed be such as might be obtain- 
ed at law, if the deeds or writings were in the 
custody of the plaintiff, he must annex to his bill 
an affidavit that they are not in his custody or 
power, and that he knows not where they are, un- 
less they are in the hands of the defendant(e) ; 
but a bill for a discovery merely, or which only 
prays the delivery of deeds or writings, or equita- 
ble relief grounded upon them, does not require 
such an affidavit(A-). 

If the title to the possession of the deeds and 
writings, of which the plaintiff prays possession, 
depends on the validity of his title to the property 
to which they relate, and he is not in possession of 
that property, and the evidence of his title to it isi 
in his own power, or does not depend on 
the production of *the deeds or writings [*55] 
of which he prays the delivery, he must es- 
tablish his title to the property at law before he 
can come into a court of equity for delivery of 
the deeds or writings(Z). 

II. Bills not original arc either an addition to, 
or a continuance of, an original bill, or both. An 
imperfection in the frame of a bill may generally 
be remedied by amendment(2) ; but the imperfec- 

(i) 1 Ves. 344. Hook v. Dorman, 6 Ves. 288. 

1 bim. & Stu. 227.(1) (I) See Jones v. Jones, 3 Meriv, 

(k) Godfrey v. Turner, 1 Vern. 161. 1 Matld. R. 193. Crow v. Ty- 

247. Whitchurch V. Guiding. 2 P. reZZ, 3 M add. 179. Field v. Beau^ 

Wms. 541. 1 Ves. 344. 3 Atk. mont, 1 Swanst. 204. 
132. But see Aston v. Lord Exeter, 

(1) Executors of Livingston v. Livingston., 4 J. C. R. 294. See 
the form of the necessary affidavit, 1 Grant's Prac. (2d edit.) 13, 

(2) Amendments are granted only where there is some defect as to 
parties, or some omissioa or mistake of a fact or circumstance connect- 

12 



90 FRAME Amy END OF THE 

tion may remain undiscovered whilst the proceed- 
ings are in such a state that an amendment can 
be permitted according to the practice of the court. 



ed with the substance of the case, but not forming the substance itself, 
or where there is some defect in the prajer for relief. Lyon v. Tall- 
madge, 1 J. C. R. 184; Verplanck v. Mercantile Ins. Co. of Jf. Y., 1 
Edwards' V. C. Reports, 46. See when amendments are allowed in 
the court of chancery of the State of New-York. Rules 43, 44, 45. 
60; 2 R. S. ]84; Hunt v. Hollajid, 2 Paige's C. R. IQ. But the 
ordinarj rules do not apply to sworn bills. Parker v. Grant, 1 J. C. 
iJ. 434 ; Rodgers v. Rodgers, 1 Paige's C. R. 424; Whitmarsh v. 
Campbell, 2 lb. 67 ; and see Beekman v. Waters, 3 J. C. i2. 410 ; and 
Renwick V. Wilson, Q lb. 81. When a complainant wants to amend 
a sworn bill, he must state the proposed amendments distinctly, so that 
the court can see that they are merely in addition to the original bill, 
and not inconsistent therewith. He must also swear to the truth of the 
several matters proposed to be inserted as amendments, and render a 
valid excuse for not incorporaling them in the original bill ; and the 
application to amend must be rnade as soon as the necessity of such 
amendnient is discovered. Rodgers v. Rodgers, supra ; Whitmarsh v. 
Campbell, supra ; Verplanck v. Mercantile Ins. Co. nfJST. Y. supra. 
Amendments to a bill are always considered as forming part of the 
original bill. They refer to the time of filing the bill ; and the defend- 
ant cannot be required to anbwer any thing which has arisen since that 
time. Hart v. Everett, 1 Paige's C. R. 124. Consequently, an origi- 
nal bill cannot be amended by incorporating therein any thing which 
arose subsequent to the commencement of the suit. This should be 
stated in a supplemental bill. Stafford v. Howlelt, lb. 200. If the 
cause has progressed so far that an amendment cannot be made, the 
court will give the complainant leave to file a supplemental bill. And 
where such leave is given, the court will permit other matters to be in- 
troduced in the supplemental bill, which might have been incorporated 
in the original bill by way of amendment, lb. 

After replication, the plaintiff will not be allowed to amend his bill 
until after he has obtained leave to withdraw his replication ; and the 
materiality of the amendment, and the reason why it was not stated be- 
fore, must be satisfactorily shoivn to the court. [See cases attached to 
the text.] But if a witness has been examined, the pleadings cannot 
be altered or amended, unless under very special circumstances, or in 
consequence of some subsequent event, except for the purpose merely 



SEVERAL KINDS OF BILLS. 91 

This is particularly the case where, after the court 
has decided upon the suit as framed, it appears ne- 
cessary to bring some other matter before the 
court to obtain the full effect of the decision ; or, 
before a decision has been obtained, but after the 
parties are at issue upon the points in the original 
bill, and witnesses have been examined (in which 
case the practice of the court will not generally 
permit an amendment of the original bill)(m) 

(to) See Chap. 4. An amendment 48. Daus v. Benn, 1 Jac. & W. 

for the purpose of adding parties, 513. Wcllbeloved v. Jones, 1 Sim. 

Anon. 2 Atk. 15. 3 Atk. HI, 371; & Stu. 40 ; or to correct a mere cleri- 

and Palk v. Lord Clinton, 12 Ves. cal error, Att. Gen. v. Newcombe, 14 



of adding parlies. Thorn v. Germond, 4 J. C. R. 363. After publi- 
cation passed, and the case is set down for hearing, the plaintiff will not 
be allowed to amen J his bill, by adding new charges ; but he may file a 
supplemental bill on payment of costs. Shepherd v. Merrill, 3 J. C. R. 
423 ; and see page 62, ante, and notes tliere. A second amendment to a 
bill was refused, after an answer by one defendant, and a plea by another, 
who was surety, and the plea allowed and the bill as to him dismissed, 
and a motion for rehearing granted, after eighteen months had elapsed 
from the first amendment, and no new evidence since acquired ; and the 
second amendment being substantially the same as the first, though 
^ more directly charging the defendants with fraud. Kirhy v. Thomp- 
son, 6 J. C. R. 79. 

Amendments by merely adding parties have been allowed at almost 
everv stage of a cause. See amendments of a formal part allowed 
after a demurrer. JiPIlvaine v. Willis, 3 Paige's C. R. 505. 

A complainant cannot, as of course, amend liis answer by leaving 
out the name of a defendant. Chase v. Dunham, 1 Paige's C- R. 
572. Nor can one defendant be struck out on motion of another, 
without notice. Livingston v. Ogden, 4 J. C. R. 94. 

As to office practice and service upon amendments, see Luce v. Gra- 
ham, 4 J. C. R. 170; Beekman v. Waters, 3 lb. 410; Rcnwick v. 
Wilson, 6 lb. 81 ; Bennington Iron Co. v. Campbell, 2 Paige's C. R, 
159; Hunt v. Holland, supra.; Rules 43,44,45. 60, of JVew York 
Chancery. 



92 FRAME AND END OF THE 

[*56] some other point appears necessary to *be 
made, or some additional discovery is found 
requisite(?«). And though a suit is perfect in its 
institution, it may by some event subsequent to 
the fihng of the original bill become defective, so 
that no proceeding can be had, either as to the 
whole, or as to some part, with effect; or it may 
become abated, so that there can be no proceeding 
at all, either as to the whole, or as to part of the 
bill The first is the case, when, although the 
parties to the suit may remain before the court, 
some event subsequent to the institution of the suit 
has either made such a change in the interests of 
those parties, or given to some other person such 
an interest in the matters in litigation, that the 
proceedings, as they stand, cannot have their full 
effect. The other is the case when, by some sub- 
sequent event, there is no person before the court 
by whom, or against whom, the suit, in the whole 
or in part, can be prosecuted. 

It is not very accurately ascertained in the 

books of practice, or in the reports, in what 
[*57] cases a suit *becomes defective without 

being absolutely abated ; and in what cases it 

Ves. 1, will be allowed at the hearing plaintiff leave to amend, unless he 

of the cause. In the caseof an infant shows not only the materiality of the 

complainant, this liberty it seems proposed alteration, but also that he 

would be granted without restriction, was not in a condition to have made 

if for his benefit. J^'rilehard v. Qnin- it earlier. See Longman v. CallU 

chant, Ambl. 147; and even in ordi- ford, 3 Anstr. 807. Forrest, Exch, 

nary ';ases great indulgence has in R. 13. Lord Kilcourcy v. Ley, 4 

this respect been shown. See Fit kin Madd. 212. Dean of Christ church 

r. Hill, 4 Bro. P. C. 640. Toml. v. SrmoTJt/s, 2 Meriv. 467. Wright 

ed. Palkv. Lord Clinton, 12 Ves. v. Howard, 6 Madd. 106. M'Neil 

48. Woollandsx.Crov.cher,\-2Yes. v. Ca/it7/, 2 Bligh, P. C. 228. See 

174. Hamilton v. Houghton, 2 Barnelt v. AoWe, 1 Jac. & W. 227. 

Bligh, P. C. 169. And with regard (n) See Jones v. Jones, 3 Atk, 

to the practice before the hearing, it 110. Goodwin \. Goodwin, 3 Atk, 

may be observed, that after the cause 370. 
(sat issue, this court will not give the 



SEVERAL KINDS OF BILLS. 93 

abates as well as becomes defective. But upon 
the whole it may be collected(o), that if by any 
means any interest of a party to the suit in the 
matter in litigation becomes vested in another, 
the proceedings are rendered defective in propor- 
tion as that interest affects the suit ; so that al- 
though the parties to the suit may remain as be- 
fore, yet the end of the suit cannot be obtained(j»). 
And if such a change of interest is occasioned 
by, or is the consequence of, the death of a party 
whose interest is not determined by his death, or 
the marriage of a female plaintiff, the proceedings 
become likewise abated or discontinued, either 
in part or in the whole(l). For as far as the 
interest of a party dying extends, there is no 
longer any person before the court by whom or 

(o) It is impossible to give author!- cases it will be found, that, in gene- 
ties for every thing asserted u[)on thi^ ral, the groun Is of the decisions war- 
head. The books, in words, ahnost rant the conclusions here drawn, 
as frequently contradict as support (p) As an example, see Mole v. 
these assertions. But it is conceived, Smith, 1 Jac. & W. 665. 
that from an attentive perusal of the 



(1) Where a part}- who has not been served with a subpcBua, nor 
appeared, dies, his death is no abatement of the suit, and, consequently, 
there can be no revivor. Nor can a plaintiff have the benefit of the 
proceedings in the suit against the executor or administrator of the de- 
ceased : for tiie intestate was never an effective party to the suit, nor 
bound by the proceedings. A bill, under these circumstances, is, 
strictly speaking, original as to the executor or administrator, though 
supplemental as to tfie other parties, and would require the represeuta- 
tives of the deceased to answer the original bill as well as the supple- 
mental matter, and pray the distinct relief to which the plaintiff con- 
sidered himself to be entitled against such executor or administrator. 
Such a bill would fail, if a general demurrer were put in by the repre- 
sentative : upon the ground that the plaintiff was not entitled to revive 
the suit, nor to have any benefit of the proceedings against him. Asbee 
¥. Shipley, Geldart Sf Madd. R. 296. 



94 FRAME AND END OF THE 

against whom the suit can be prosecuted ; and a 
married woman is incapable by herself of prose- 
cuting a suit. As the interest of a plaintiff gene- 
rally extends to the whole suit, therefore, in gene- 
ral, upon the death of a plaintiff, or marriage of a 
female plaintiff, all proceedings become abated(^), 
(1). Upon the death of a defendant, likewise, 
[*58] all proceedings abate *as to that defend- 
ant. But upon the marriage of a female de- 
fendant, the proceedings do not abate(r), though 
her husband ought to be named in the subsequent 
proceedmgs(5)(2). If the interest of a party dy- 

(9) 1 Eq. Ca. Ab. 1, margin, plaintiff cannot he injured by a de- 
Dick. 8. Adamson v. Hull, 1 Sim. cree against flie |)crson holding that 
& Stn. 24!). possession. And it has been deter- 

(r) 4 Vin. Ab. 147. PI. 20. 1 mined, that wliore a female plaintiff 

Vern. 318. has married, and has, notwithstand- 

(s) 1 Ves. 182. The reason of the ing, j)roceeded in a suit as a feme 
din'erence between the oases of a fe- sole, the viere want of a bill of re- 
male plaintiff and defirdpnt seems to vivor is not error for which a decree 
be, that a plaintifi' seeking to obtain can be reversed upon a bill of review 
a right, the defindant 11133 be injured brought by the defendant. Lady 
by answering to one who is not eiiti- Cramborne v. Dcdraahoy, 1 Chan, 
tied to sue for it ; but a deiendant Rep. 231. Nels. Rep. 86. '= And 
naerely justifying a possession, the at law, if a womari sues or be sued 



(1) But an injunction is neither inoperative nor abated b}' the 
abatement of a suit. But the rule is, that if the suit abates by the death 
of either the complainant or defendaot, the party against whom the in- 
junction issued, or his representatives, may have an order requiring 
the complainant or his representatives to revive within a stated time, or 
that the injunction be dissolved. Where a suit abates by llie death of 
the complainant, those who succeed to his rigiits may apply to the court 
to punish a breach of an injunction wliich has taken place either be- 
fore or after his death, as soon as they have taken the preliminary steps 
to revive llie suit either by filing' a bill of revivor or otherwise ; and it 
is not necessary for them to wait until a decree of revivor is actually 
obtained. Per Cliancellor Walworth, in Hawley S^ others. Trustees, 
4-c., V. Bennett {J\l. 5.) IG July. 1833. 

(2) And if she has answered, the husband is bouDd by it. 1 Harr, 
I'rac. 296, (6th edit.) ; and see Cary. 81. 



SEVERAL KINDS OF BILLS. 95 

ing so determines that it can no longer affect the 
suit, and no person becomes entitled thereupon to 
the same interest which happens in the case of a 
tenant for hfe, or a person having a cotemporary 
or contingent interest, or an interest defeasible 
upon a contingency, the suit does not so abate as 
to require any proceeding to warrant the prosecu- 
tion of the suit against the remaining parties ; but 
if the party dying be the only plaintiff, or only 
defendant, there may be necessarily an end of 
the suit, no subject of litigation remaining. If 
the whole interest of a part}' dying survives to 
another party, so that no claim can be made by 
or against the representatives of the party 
dying, as, if a "^bill is filed by or against [*59] 
trustees or executors, and one dies not hav- 
ing possessed any of the property in question, or 
done any act relating to it which may be question- 
ed in the suit, or by or againr^t husband and wife, in 
right of the wife, and the husband dies under cir- 
cumstances which admit of no demand by or 
against his representatives(/), the proceedings do 
not abate. So if a surviving party can sustain the 

as sole, and judgment is against her (t) Dr. Parry v, Juxon, 3 Ch:>.n. 

as such, tiiough she was covert, she Rc,>. 40. 2 f'reem. 133. Shelberry 

shall be estopped, and the sheriff v. Jiriggs, 2 Vern. 249. i\non. 3 

shall take advantage of the estoppel." Atkvns, 726. See Humphrci/s v. 

1 Salk. 310. 1 Rol. Ab. 869. 1. 50. Hollis, 1 Jac. R. 73.(1) 



(1) M-Dowl V. Charles, 6 J. C. R. 132; and see 2 R. S. 184, 

185 ; Vaughan v. Wilson, 4 Hen. S^ Jllunf. 453; Coppin v. , 

2 P. Wins. 49Q; Bond v. Simmons, 3 «5<^^ 21. But if sAe dies, it 
will abate. The death of the wife, wiien they sus for what they have 
a joint right to, shall not abate tiie suit : for the whole interest survives 
to the husband. Pisrs v. Kaicse, Carij, Vj3. 169 ; Shelberry v. Bngg», 
2 Vern. 249 ; aad see Dowlin v. M'Dousall, I S. Sf S. 367. 



06 FRAME AND END OF THE 

suit, as in the case(/*) of several creditors(2), plain- 
tiffs on behalf of themselves and other creditors(ar). 
For the persons remaining before the court, in all 
these cases, either have in them the whole interest 
in the matter in litigation, or at least are competent 
to call upon the court for its decree. If, indeed, upon 
the death of the husband of a female plaintiff suing 
in her right, the widow does not proceed in the 
cause, the bill is considered as abated, and she is 
not liable to the rosts(i/). But if she thinks proper 
to proceed in the cause, she may do so without a 
bill of revivor ; for she alone has the whole interest, 
and the husband was a party in her right, and 
therefore the whole advantage of the proceedings 
survives to her ; so that if any judgment has been 
obtained, even for costs, she will be entitled to 

the benefit of \i(2). But if she takes any 
[*60] *step in the suit after her husband's death, 

she makes herself liable to the costs from the 
beginning. If a female plaintiff marries pending 
a suit, and afterwards, before revivor, her husband 
dies (a), a bill of revivor becomes unnecessary, 
her incapacity to prosecute the suit being removed; 
but the subsequent proceedings ought to be in the 

(u) As another e:sample of the pro- & Stu. 491, 493. 

position in the text, the case of a suit (y) Treat, on star-cbam. p. 3. sect, 

by joint-tenants generally, may be 3. Harl. MSS. 

njentioned.(l) See 11 Ves. 309. (z)Coppinv. , 2 P. Wms, 

1 Meriv. 364. 49(i. 

(.r) 1 Meriv. 364. Burncy v. (a) Godkin and others against 

Morgan, 1 Sim. & Stu. 358. 1 Sim. Earl Ferrers, 1772. 

(1) If two joint tenants exhibit (heir bill and one releases, this will 
not abate the suit as to the other. 2 Freem. 6. 

(2) And see Edwards on Parties, 169, pi. 75. A creditor who ha& 
been permitted to come in, may revive in cases where the suit abates. 
Pitt V. Creditors of D. of Richmond, \ Eq. Ca. Abr. pi. 7. 



SEVERAL KINDS OF BILLS. 97 

halme and with the description which she has ac- 
quired by the marriage. A decree on a bill of 
interpleader may terminate the suit as to the 
plaintiff, though the litigation may continue be- 
tween the defendants by interpleader(&) ; and in 
that case the cause may proceed without revivor 
(c), notwithstanding the death of the plaintiff [d). 

(b) See above, p. 49, note n(l). to abate the suit. 3 Swanst. 138 ^ 

fc) Anon. 1 Vern. 351. and see Blackburn v. Jepson, 17 

(d) Where on a bill filed by a cor- Ves. 473, S. C. 3 Swanst. 133. 

poration aggresjate, suing in their But where a bill is filed by a corpcH 

corporate capacity only, the names of ration sole, having a personal interest, 

the persons forming the same had the suit necessarily abates by his 

been inadvertently and unnecessarily death, so far as it affects his personal 

inserted, the members of the corpora- interest, and to that extent may be re- 

tion having had individually no in- vived by his personal representative ; 

terest in the subject, the death of a and if the suit affect the rights of his 

person so improperly named in the successor, such successor may obtain 

bill was not considered as operating the benefit of it in a different form(2). 



(1) See the practice upon an interpleader bill explained in the case 
of The City Bank v. Bangs, 2 Paige's C. R. 570. 

(2) If a mortgagor brings a bill to redeem, after an account is de- 
creed, report made, and divers proceedings are had in the cause, and 
the plaintiff is ordered to pay costs and deliver possession, and also after- 
wards the defendant, a mortgagee, dies, his executor may revive the 
suit and have the benefit of the order for costs. This was decided in 
Stowell V. Cole, 2 Vern. 396. But see the particulars of the case, for 
they were, in some respects, special. The heir of a party may revive. 
1 Harr. Pr. 299, (6th edit.) Although by the death of the cestui que 
trust the suit abates as to him, yet, if there be a decree against him 
and his trustees to convey, &c., the trustees are obliged to convey, for 
the deatli of either part}' makes an abatement only quoad him&elf. lb, 
297. Where there is a decree for an account, and then the cause 
abates by the defendant's death, the general practice allows the re- 
presentative to revive, as well as the plaintiff, both being in the na* 
ture of plaintiffs. Kent v. Kent, Prec. in Ch. 197. 

When the contest relates to real estate and is between joint heirs, 
and one dies without issue or will, leaving the others his heirs, no re- 
vivor is necessary. It is otherwise in cases of personalty, which 
passes to representatives. Shields v. Craig's executors, 6 Monroe's 
R. 743. 

13 



98 FRAME AND END OF THE 

There is the same want of accuracy in the 
books in ascertaining the manner in which the 
benefit of a suit may be obtained after it has be- 
come defective, or abated by an event sub- 
[*61] sequent to its institution, *as there is in 
the distinction between the cases where a 
suit becomes defective merely, and where it Hke- 
wise abates. It seems, however, clear, that if any 
property, or right in Htigation, vested in a plain- 
tiffs is transmitted to another, the person to whom 
it is transmitted is entitled to vsupply the defects of 
the suit, if become defective merely, and to conti- 
nue it, or at least to have the benefit of it, if abated 
(1). It seems also clear, that if any property or 
right, before vested in a defendant^ becomes trans- 
mitted to another, the plaintiff is entitled to ren- 
der the suit perfect, if become defective, or to con- 
tinue it, if abated, againsttheperson to whom that 
property or right is transmitted. 

The means of supplying the detects of a suit, 
continuing it if abated, or obtaining the benefit of 
it, are : 1, by supplemental bill; 2, by bill of revi- 
vor ; 3, by bill of revivor and supplement ; 4, by 
original bill in the nature of a bill of revivor ; and 
5, by original bill in the nature of a supplemental 
bill. The distinctions between the cases in which 
a suit may be added to, or continued, or the bene- 
fit of it obtained, by these several means, seem to 
be the following : 

I. Where the imperfection of a suit arises from 
a defect in the original bill, or in some of the pro- 

(1) Deas V. Thome, 3 J. R. 543. 



SEVERAL KINDS OF BILLS. 99 

ceedings upon it, and' not from any event subse- 
quent to the institution of the suit, it may be add- 
ed to by a supplemental bill merely(c). Thus 
a *supplemental bill may be filed to obtain [*62] 
a further discovery(^) from a defendant, to 
put a new matter in issue, or to add parties, where 
the proceedings are in such a state that the origi- 
nal bill cannot be amended for the purpose(^). 
And this may be done as well after as before a 

(e) As a general rule, it has been ject, in ■which the plaintiff, upon facta 

laid down, that events which have stated in the answer of the defendant, 

happened subsequently to the filing amended his bill in order to meet the 

of the original bill, ought not to be defence which arose therefrom. — 

made the subject of amendment, but Knight v. Matthews, 1 Madd. R. 

that they should be brought before 566. 

the court by a supplemental bill. (y) Boeve v. Skipwith, 2 Ch. Rep. 

Humphreys v. Humphreys, 3 P. 142. Usborne v. Baker, 2 Madd. R. 

Wms. 349. Brown v. Higden, 1 379. 

Atk. 291. 3 Atk. 217. Pilkington (g) Goodwin v. Goodwin, 3 Atk. 

V. Wignall, 2 Madd. R. 240. Us- 370(2). There is the form of a bill 

borne v. Baker, 2 Madd. R. 379(1). of this nature in 1 Pres, Prac. of 

See a very peculiar case on this sub- Chan. 146. 



(1) Saunders v. Frost, 5 Pickering's R. 275 ; Barjield v. Kelly, 4 
Russ. 355 ; King v. Sullock, 2 Sim. 469 ; Candler v. Pettit, 1 Paige's 
C. R. 168. If the original bill is sufficient for one kind of relief, and facts 
afterwards occur which entitle the complainant to other or more exten- 
sive relief, he may have such relief by setting- out the new matter in a 
supplemental bill. lb. But if an original bill is wholly defective, and 
there is no ground for proceeding upon it, the same cannot be sustained 
by filing a supplemental bill, founded upon matters which have subse- 
quently taken place. lb. ; Stafford v. Howlelt, lb, 200. Nor by 
stating matter in the supplemental bill which ought to have been insert- 
ed in the original bill. Pritchard v. Draper, \ R. &( M. \^\. 

(2) Where a complainant amends his bill by a supplemental one, in 
order to bring other parlies before the court, he need not make the de- 
fendants in the original bill parlies to the supplemental one. Ensworth 
V. Lambert, 4 J. C. R. 605 ; MKown v. Yerks, 6 lb. 450 ; and see 
page 16, post. Still, if any of the original defendants have an interest 
in the supplemental matter, and justice requires they should be at liberty 
to join issue with the plaintiff upon the supplemental parts, then it is 
fit they should be made defendants. Bignall v. Atkins, 6 JVladd. 369. 
A supplemental bill is not to be filed where subpoenas have not been 



100 FRAME AND END OF THE 

decree ; and the bill may be either, in aid of the 
decree, that it may be carried fully into execution 
(A), or that proper directions may be given upon 
some matter omitted in the original bill(i), or not 

(A) Woodward v. Woodward, Dick, See Giffard v. Hort. 2 Sch. & Lefr. 
33. Or it may be filed for the pur- 386. 
pose of appealing against the decree. (i) 3 Atk. 133. 



ssrved in the original suit. Stewart v JVichoUs, 1 Tamlyn's C. R. 307. 
See (he form of a " supplemantal bill to obtain further discovery from 
" a defendant, to put new matter in issue and add parties, where the 
" proceedings are in such a state that the original bill canDOt be amend- 
" ed for that purpose." Willis, 326, and observe the notes there. 
Also, for other forms of supplemental bills, see 1 Equity Drafts. (2d 
edit.) 519. 522, 523. 525, 526, 527, 528. Also, a supplemental bill in 
aid of a decree. Willis, 340. 

Where much expense has been incurred in the suit, and it appears 
defective in form at the hearing, the court will direct the cause to stand 
over, with liberty to file a supplemental bill to correct the form. Mut-, 
ter V. Chauvel, 5 Russ. 42. After an original cause is at issue, the 
complainant cannot file a supplemental bill for the purpose of putting 
in issue and obtaining a discovery of facts and documents which might 
bave been introduced by amenLlment into the ojiginal bill, although the 
supplemental bill alleges that those facts and documents were not known 
to the complainant until after the original suit was at issue. Colclovgh 
V. Evans, 4 Sim. 76. In the late case of Dias v. Merle, (M. S.) Sep' 
teraber, 1833, Chancellor Walworth recognises Colclough v. Evans; 
and as his honor put forth an important and somewhat new principle, 
it is desirable to give an extract from the case. A replication had 
been filed and a decretal order of reference granted. The cause now 
came up on a motion for an injunction and receiver, grounded upon « 
supplemental bill. But the court considered there was no foundation 
whatever for this supplemental bill in that stage of the suit, as no fact 
had occurred to change tbe rights of the parties since the filing of the 
replication and the entering of the decretal order of reference. 
'• After an original cause," adds Chancellor Walworth, " is at issue, the 
^' complainant may sometimes file a supplemental bill, in the nature of 
" a bill of discovery, for the purpose of obtaining evidence in support 
" of the matters put in issue in the original suit, of which he was not 
" apprized at the time of filing his replication. But that is strictly a 
" bill of discovery in aid of the original suit ; and should not pray re- 



SEVERAL KINDS OF BILLS. 101 

put in issue by it, or by the defence made to it(fe) ; 
or to bring formal parties before the court(Z) : or 
it may be used as a ground to impeach the decree, 
which is the pecuhar case of a supplemental bill 
in the nature of a bill of review, of which it will 
be necessary to treat more at large in another 
place. But wherever the same end may be ob- 
tained by amendment, the court will not permit a 

supplemental bill to be filed(m). 
[*63] *When any event happens subsequent to 

the time of filing an original bill(n), which 
gives a new interest in the matter in dispute to 
any person not a party to the bill, as the birth of 

(k) Jones v. Jones, 3 Atk. 110. Atk. 817 ; see note (e) p. 62. 

h) Ibid. 217. (n) 1 Atk. 291. 3 Atk. 217. See 

(m) See Baldwin v. Mackown, 3 above, p. 62, note (e). 

" lief. The complainant obtaining the discovery in sucIj a case pays 
" the defendant's costs, as in other bills for discovery merely. The 
*' bill in such cases is in the nature of a supplemental bill in the origi- 
<' nal suit," His honor then went on to echo the rule laid down as 
above in Colclough v. Evans. 

After a defendant has put in his answer under oath, the complainant 
cannot, by the practice of the State of New-Yorl?, amongst amend- 
ments, be permitted to waive an answer on oath to the amended bill. 
The statute authorizing the complainant to waive the necessity of an 
answer on oath from the defendant (2 R. S. 175, ^ 44,) has introduced 
a new principle into the system of equity pleading. This provision 
was introduced into the revised statutes upon the suggestion of Chan- 
cellor Walworth, and was intended to leave it optional with the com- 
plainant to compel a discovery from the defendant in aid of his suit or 
to waire the oath of the defendant, if the complainant was unwilling 
to rely upon his honesty, and chose to establish his claim by other evi- 
dence alone. He has no right, therefore, to call upon the defendant 
for a discovery as to a part of the matters of his bill, and to deprive the 
defendant of the benefit of his answer on oath, as responsive to other 
matters stated in the bill. He must receive an oath as to every portion 
of the bill, or to no part thereof. Per Ch. Walworth in Burras v. 
Looker, (M. S.) 20 August, 1833. 



102 FRAME AND END OF THE 

a tenant in tail, or a new interest to a party, as 
the happening of some other contingency, the de- 
fect may be supphed by a bill which is usually 
called a supplemental bill(o), and is in fact merely 
so with respect to the rest of the suit, though with 
respect to its immediate object, and against any 
new party, it has in some degree the effect of an 
original bill. If any event happens which occa- 
sions any alteration in the interest of any of the 
parties to a suit, and does not deprive a plaintiff 
suing in his own right of his whole interest in the 
subject, as in the case of a mortgage or other par- 
tial change of interest; or if a plaintiff suing in 
his own right is entirely deprived of his interest, 
but he is not the sole plaintiff, the defect arising 
from this event may be supplied by a bill of the 
same kind, which is likewise commonly termed, 
and is, in some respects, a supplemental bill mere- 
ly, though in other respects, and especially against 
any new party, it has also in some degree the effect 
of an original bill(2). In all these cases the par- 
ties to the suit are able to proceed in it to a cer- 
tain extent, though from the defect arising 
[*64] *from the event subsequent to the filing of 
the original bill the proceedings are not 
sufficient to attain their full object. 

(o) It may here be remarked, that in respect thereof cannot be obtained 

such subsequent event must not only under the original bill. Adams v. 

be relevant, but material, see Milner Dowdirg, 2 Madd. R. 53(1). Mole 

V. Lord Harewood, 17 Ves. 144, and v. Smith, 1 Jac. & W. 645. 
of such a nature, that the reUef sought 



(1) Id this case it is said to be seldom necessary to file a supple- 
mental bill where (he original one is for an accouDt. 

(2) Bignall y. Atkins, 6 Mad. 369. 



SEVERAL KINDS OF BILLS. 103 

If the interest of a plaintiff suing in auter 
droit entirely determines by death or otherwise, 
and some otlier person thereupon becomes entitled 
to the same property under the same title, as in 
the case of new assignees under a commission of 
bankrupt, upon the death or removal of former 
assignees(^), or in the case of an executor or ad- 
ministrator, upon the determination of an admi- 
nistration durante minori cetatei^q) or pendente 
lite, the suit may be likewise added to and conti- 
nued by supplemental bill(r). For in these cases 
there is no change of interest v^hich can affect the 
questions between the parties, but only a change of 
the person in whose name the suit must be prose- 
cuted ; and if there has been no decree, the suit 
may proceed, after the supplemental bill has been 
filed, in the same manner as if the original plaintiff 
had continued such, except tliat the defendants 
must answer the supplemental bill, and either ad- 
mit or put in issue the title of the new plaintiff. 
But if a decree has been obtained before the event 
on which such a supplemental bill becomes neces- 
sary, though the decree be only a decree 
nisi, there must be a decree *on the supple- [*65] 
mental bill, declaring that the plaintiff in 
that bill is entitled to stand in the place of the 
plaintiff in the original bill, and to have the bene- 
fit of the proceedings upon it, and to prosecute the 

(p) Anon. 1 Atk. 88. S. C. 1 Atk. tion determined by death, a bill of re- 

571. Brown v. Martin, 3 Atk. 218. vivor by a substquent administrator 

(9) See Jones v. Basset, Prec. in has been admitted. Gwen v. Cur- 

Ch. 174. Gary's Rep. 22. Stubbs zon, 2 Vern. 237. Huggins \.York 

V. Ltigh, 1 Cox, R. 133. Build. Comp. 2 Eq. Co. Ab. 3. 

(r) In the case of an administra- 



104 FRAME AND END OF THE 

decree, and take the steps necessary to render it 
efrectual(5). 

If a sole plaintiff suing in his oion right is de- 
prived of his whole interest in the matters in ques- 
tion by an event subsequent to the institution of a 
suit, as in the case of a bankrupt or insolvent debt- 
or, whose whole property is transferred to assign- 
ees, or in case such a plaintiff assigns his whole 
interest to another, the plaintiff being no longer 
able to prosecute for want of interest(<), and his 
assignees claiming by a title which may be liti- 
gated, the benefit of the proceedings cannot be 
obtained by a supplemental bill, but must be sought 
by an original bill(w) in the nature of a supple- 
mental bill, which will be the subject of discussion 

in a subsequent page. 
[*66] *If a commission of bankrupt issues 

against any party to a suit, or he is dis- 
charged as an insolvent debtor, his interest in the 
subject is, unless he is a mere trustee, generally 
transferred to his assignees(a:) (1); and to bring 

(s) Brown v. Martin, 3 Atk. a plaintiff suing in his own right be- 

218. comes a bankrupt, that, as a general 

(f) Upon the question whether the rule, the suit abates. And the truth 
bankruptcy of a sole plaintiff is, or of the proposition will be more appa- 
ought to be considered, an abatement rent from what is further stated in 
of a suit, some difference of opinion the next page of the text- 
has prevailed. See Sellas v. Dawson, (w) See Harrison v: Ridley, Com. 
Rep. 1 Atk. Sand. ed. 263. note, Rep. 589. 

4 Madd. 171, and the cases of Han- (x) 9 Ves. 86. 1 Ves. & B. 547; 
dull V. M-umford, 18 Ves. 424, and and see, as to the exceptions, Cope- 
Porter V. Cox, 5 Madd. 80, in which man v. Gallant, 1 P. Wma. 314. 
revivor seems to have been thought 2 P. Wms. 318. Ex parte Ellis, I 
necessary. But as it cannot be Atk. 101. 1 Atk. 159. 234. 6 Ves. 
stated a priori, that there will not be 496. Joy v. Campbell, 1 Sch. &. 
any surplus of the bankrupt's estate Lefr. 328. Ex parte Martin, 19 
after satisfaction of the creditors, who Ves. 491. S. C. 2 Rose, B. C. 331. 
may prove under the commission, it Ex parte GiUett, 3 Madd. 28. 
•eems impossible to insist, even where 

(1) Moran v. Hays, 1 /. C- R. 339. Every argument which goes 
to show an insolvent to be a proper party before his discharge, applies 



SEVERAL KINDS OF BILLS. 105 

them before the court a supplemental bill is ne- 
cessary, to which the bankrupt or insolvent debtor 
is not usually required to be a party(l), although 
a bankrupt may dispute the validity of the commis- 
sion issued against him(?/). But, if plaintiff, a bank- 
rupt may proceed himself in the suit, if he disputes 
the validity of the commission, or a bankrupt or 
insolvent may proceed if the suit is necessary for 
his protection(2;), or if his assignees do not think 

(y) The commission, however, can- 140. Ex -parte Price, 3 Madd. 228. 

not be actually impeachud by him in Ex -parte Ranken, 3 Madd. 371. Ex 

the suit : his proper mode of dispu- parte Bass, 4 Madd. 270. Bayle-y 

tin<r its validity is by an action at law, v. Vincent, 5 Madd. 48. Ex parte 

or by a petition to supersede the same. Gale, 1 Glyn & J. 43. 
See Hammond v. Atlwood, 3 Madd. (z) Anon. 1 Atk. 263. 1 Madd. 

158; and see Bryant \ . Withers, 2 R. 425. And this seems to be an- 

Maule & Selw. 123. 15 Ves. 4(38. Ex other reason, why it cannot be a ge- 

parte M'Gennis, 18 Ves. 28!>. S. C. neral rule that the bankruptcy of the 

1 Rose, B. C 60. Ex parte Bryant, plaintiff causes an abatement, even 

2 Rose, B. C 1. Ex parte Northam, where he sues in his own right. (2) 

2 Ves. & B. 124. S. C. 2 Rose, B. C. 

with equal force, to prove that his assignees, after that event, are equally 
so. They stand, in relation to his property, precisely in the place of 
the insolvent. The assignees succeed to all the rights of the insolvent, 
which, in behalf of the creditors, they are bound to protect and defend. 
They have the same interest in the final issue of the cause ; and, in the 
character of assignees, they are entitled to be heard. Deas v. Thoi-ne^ 

3 J. R. 551. In Osgood v. Franklin, 2 J. C. R. 16, two of the plain- 
tiffs had been discharged under an insolvent act, and another had died. 
The course taken was b}' a bill of revivor and supplement, whereby 
the assignees of the insolvents were made defendants, as well as the 
executors of the deceased party. It was objected, that they (the as- 
signees) ought to have been plaintiffs ; but the court determined the 
assignees could not be compelled to be plaintiffs. It was sufficient for 
the merit of the case that they were before the court. 

(1) In Collins v. Shirley, 1 Russ. Sf M. 638, a bill of foreclosure 
was filed against Shirley. He had taken the benefit of the insolvent 
act ; and yet he was made a party with his assignees. The J\l. R. de- 
cided that Shirley had been made a party improperly, and ought, there- 
fore, to have hi> costs. 

(2) A bankrupt cannot file a bill of redemption in respect of his 
right to the surplus. But where he has a clear interest, and the as- 

14 



106 FRAME AND END OF THE 

fit to prosecute the suit, and he conceives 
[*67] that it is for his *advantage to prosecute 
it(^/). Under those circumstances, however, 
he must hring the assignees before the court by 
supplemental bill, as any benefit which may be de- 
rived from the suit must be subject to the demands 
of the assignees(6), unless he seeks his personal pro- 
tection only against a demand which cannot be pro- 
ved, or which the person making the demand may 
not think fit to prove, under the commission issued 
against the bankrupt, or from which the insolvent 
debtor may not be discharged(c). 

And if by any event the whole interest of a de- 
fendant is entirely determined, and the same inte- 
rest is become vested in another by a title not de- 
rived from the former party, as in the case of suc- 
cession to a bishopric or benefice, or of the deter- 
mination of an estate-tail, and the vesting 
[*68] of a subsequent remainder *in possession, 

(a) Lowndes v. Taylor, 1 Maild. general rnle, abate the suit, it un- 
R. 423. S. C. 2 Rose, B. C. 3G5. questionably renders it defective, 18 
432. If an uncertificated bankrupt Ves. 427; and this court upon a 
should be desirous that a suit in re- special application will dismiss the 
spect of the property should be com- bill, (but, as it seems, without costs,) 
menced or prosecuted, and his assign- unless the plaintiffmake his assignees, 
ees should refuse to adopt that course, or upon notice they make themselves 
it seems, that to attain his object, he parties thereto by supplemental bill 
must petition for leave to use their within a limited time. (1) Williams 
names for the purpose of the proceed- v. Kinder, 4 Ves. 387. Eandall v. 
ing, he indenuiifving them. 5 Ves. Mumford, 18 Ves. 424. \\ heeler y. 
.087. 5:*0. Bevjield v. Solomons, 9 Malins, 4 Madd. 171. Porter v. 
Ves. 77. 3 Madd. 158. Cox, 5 Madd. 80. S. C. 1 Buck. B. 

(b) Although, it seems, the bank- C. 469. Sharp v. Hulletl, 2 Sim. & 
ruptcy of a plaintiff", suing even in Stu. 496. 

his own right does not, at least as a (c) See above, note (a.) 

sio^nees refuse, the court, upon petition and an offer of indemnity, will 
compel Uiem to let iiim use their names. Spragg v. Binkes, 5 Ves. 590. 
(I) Query — Whether the insolvent might not, instead of proceed- 
ing by supplemental bill, petition the court to let Lim use their names 
in the suit, upon being indemnified.? Spragg y. Binkes, 5 Ves. 590. 



SEVERAL KINDS OF BILLS. 107 

the benefit of the suit against the person be- 
coming entitled by the event described must 
also be obtained by original bill in the nature of 
a supplemental bill : though if the defendant whose 
interest has thus determined is not the sole de- 
fendant, the new bill is supplemental as to the rest 
of the suit, and is so termed and considered. But 
if the interest of a defendant is not determined, 
and only becomes vested in another by an event 
subsequent to the institution of a suit, as in the 
case of alienation by deed or devise, or by bank- 
ruptcy or insolvency, the defect in the suit may be 
supplied by supplemental bill, (1) whether the suit 
is become defective merely, or abated as well as 
become defective(df). For in these cases the new 
party comes before the court exactly in the same 
plight and condition as the former party, is bound 
by his acts, and may be subject to all the costs of 
the proceedings from the beginning of the suit(c). 
In all these cases, if the suit has become abated 
as well as defective, the bill is commonly 
termed a ^^supplemental bill in the nature of [*69] 

(d) See Rutherford v. Miller, 2 miirht be dismissetl, was allowed to 

Anstr. 458. Russell v. Sharp, 1 be proper under the circumstances ; 

Ves. & B. 500. Whitcombe \. Min- which affords a ground, besides the 

chin, 5 Madd. 91. F'oster v. Dea- reasons already intimated in relation 

coK, 6 Madd. 5:>. Turner v . Robin- to the plaintiff becoming bankrupt, 

son, I Sim. & Stu. 3. In Lhe cases so far as they apply, for presuming 

of Monteith v. Taylor, 9 Ves. HIS, that the bankruptcy of the defendant 

and Rhode v. Spear, 4 Madd. 51, a does not abate the suit, but merely 

motion on the part of the defendant, renders it defective. 
after his bankruptcj, that the bill (e) 1 Atk. 89. 

(1) It was said in Slack v. Tf^dlcolt^ 2 Jla.inn, 50^, {hat a devisee 
may maintain an original bill in the nature of a bill of revivor, and 
thus obtain the benefit of the original proceedings, as well before as 
after there has been a decree in the origioal suit. 



108 FRAME AND END OF THE 

a bill of revivor, as it has the effect of a bill of 
revivor in continuing the suit(l). 

2. Wherever a suit abates by death, and the in- 
terest of the person whose death has caused the 
abatement is transmitted to that representative 
which the law gives or ascertains, as an heir at 
law, executor or administrator, so that the title 
cannot be disputed, at least in the court of chan- 
cery, but the person in whom the title is vested is 
alone to be ascertained, the suit may be continued 
by bill of revivor merely(2). If a suit abates by 
marriage of a female plaintiff*, and no act is done 
to affect the rights of the party but the mar- 
riage, no title can be disputed; the person of the 
husband is the sole fact to be ascertained, and 
therefore the suit may be continued in this case 
likewise by bill of revivor merely. 

When a suit became abated after a decree 
signed and enrolled {f)i it was anciently the prac- 
tice to revive the decree by subpoena in the nature 

(/) 1 Ves. 182. 184. 

(1) Westcolt V. Cady, 5 J. C. R. 334. 

(2) JSTicoll V. Roosevelt, 3 J. C. R. 60 ; Feomster v. Markham, 2 
J. J. Marshall's R. 303. Where the cause of action against a de- 
ceased party does not survive, but some third person becomes vested 
with his interest or subject to his liabilities, the complainant maj' elect 
to proceed without reviving the suit against the representatives of the 
deceased party, provided a perfect decree can be made between the 
survivors without bringing such representatives before the court. 
Leggell V. Dubois, 2 Paige's C. R.2\\. 

If two bring a suit to redeem and one dies, the surviving plaintiff 
and heir of the deceased party cannot file an original bill ; but should 
proceed by bill of revivor. Saunders v. Frost, 5 Pickering's R. 275. 

See more as to bills of revivor, p. 76, 11, post, and notes there. 

A bill of revivor, when necessary, may be filed of course without 



SEVERAL KINDS OF BILLS. 109 

of a scire facias(f)(l), upon the return of which 
the party to whom it was directed might show 
cause against the reviving of the decree(^), by 
insisting that he was not bound by the decree(/i), 
or that for some other reason it ought not to be 
enforced against him, or tliat the person suing the 
subpoena was not entitled to the benefit of the de- 
cree. If the opinion of the court was in 
his favor he was dismissed with costs. If *it [*70] 
was against him(i), or if he did not oppose 
the reviving of the decree, interrogatories were 
exhibited for his examination touching any matter 
necessary to the proceedings(A;). If he opposed 
the reviving of the decree on the ground of facts 
which were disputed, he was also to be examined 
upon interrogatories, to which he might answer or 
plead ; and issue being joined, and witnesses ex- 
amined, the matter was finally heard and deter- 
mined by the court. But if there had been any 
proceeding subsequent to the decree this process 
was inefrectual(/), as it revived the decree only, 
and the subsequent proceedings could not be re- 
vived but by bill ; and the enrolment of decrees 

r/) 11 Ves. 311. (i) I Ca. in Cha. 273. 

(g) See 1 Vern. 426. Sayer v. (A) Anon. 2 Freem. 128. 

Saijer, Dick. 42. {l) Croster v. Wister, 2 Cha. Rep. 

(A) Brown v. Vermuden, 1 Ca. in 67. Thorn v. Pitt, Sel. Ca. in Cha. 

Cha. 272. 54. S. C. 9 Eq. Ca. Ab. 180. 

any order of the court granting permission to file such bill. Lewis v. 
Bridgman, 2 Sim. R. 405 ; Pendleton v. Fmj, 3 Paige's C. R. 206. 

As to the practice upon bills of revivor in Tennessee, see Lewis v. 
Outlaw, 1 Ouerton's R. 140. 

Upon a bill of revivor in Kentucky, a subpcKna is served. Sloid v. 
Higbees' executors, 4 Monroe, 145. 

(1) And tliis appears to be still the practice in the Iiislicourt of 
chancery. Cox v. J\l'J^amara, 1 Hogan, 12. 



110 FRAME AND END OF THE 

being now much disused, it is become the practice 
to revive in all cases, indiscriminately, by bill(m). 
3. If a suit becomes abated, and by any act be- 
sides the event by which the abatement happens 
the rights of the parties are affected, as by a set- 
tlement(w), or a devise(o) under certain circum- 
stances, though a bill of revivor merely may con- 
tinue the suit so as to enable the parties to prose- 
cute it, yet to bring before the court the whole 
matter necessary for its consideration, the parties 

must, by supplemental bill, added to and 
[*71] made part of the bill of ^revivor, show the 

settlement, or devise, or other act, by 
which their rights are affected(l). And, in the 
same manner, if any other event which occasions 
an abatement is accompanied or followed by any 
matter necessary to be stated to the court, either 
to show the rights of the parties, or to obtain the 
full benefit of the suit, beyond what is merely ne- 
cessary to show by or against whom the cause is 
to be revived, that matter must be set forth by 
way of supplemental bill, added to the bill of re- 
vivor(^). 

4. If the death of a party, whose interest is not 
determined by his death, is attended with such a 
transmission of his interest that the title to it, as 
well as the person entitled, may be litigated in the 
court of chancery, as in the case of a devise of a 

(in') See Dunn v. Allen, 1 Vern. (o) See Rylands v. Matouche, 2 

426. Pract. Reg. 90. Wy. ed. Bligh, P. C. 566. 

(n) See Merrywether v. Mellish, (p) See Russell v. Sharp, 1 Ves. 

13 Ves. 161. & Bea. 500. 

(1) See the form of such a bill in Willis, p. 352. 



SEVERAL KINDS OF BILLS. Ill 

real estate(<y), the suit is not permitted to be con- 
tinued by a bill of revivor. An original bill, upon 
which the title may be litigated(r), must be filed ; 
and this bill will have so far the efiect of a bill of 
revivor, that if the title of the representative substi- 
tuted by the act of the deceased party is established, 
the same benefit may be had of the proceedings 
upon the former bill as if the suit had been con- 
tinued by a bill of revivor(5). 

*5. If the interest of a plaintifTor defen- [*72] 
dant, suing or defending in his own right, 
wholly determines, and the same property becomes 
vested in another person not claiming under him, 
as in the case of an ecclesiastical person succeed- 
ing to a benefice, or a remainder-man in a settle- 
ment becoming entitled upon the death of a prior 
tenant under the same settlement(<), the suit can- 
not be continued by bill of revivor, nor can its de- 
fects be supplied by a supplemental bill. For though 
the successor in the first case, and the remain- 
der-man in the second, have the same property 
which the predecessor, or prior tenant, enjoyed, yet 
they are not in many cases bound by his acts, nor 
have they in some cases precisely the same rights. 
Cut, in general, by an original bill in the nature of 

(q) Backhouse v. Middleton, 1 Ca. 1 Eq. Ca. Ab. 83. Minshull v. lord 

in Cha. 173. S. C 3 Ch. Rep. 39, Mokun. 2 Vern. 672. 6 Bro. P. C. 

and 2 Freeni. 132. Mosely, 44. 36. Toml. cd(l). 

(r) 1 Eq. Ca. Ab. 2, pi. 2 & 7. {t) 2 Eq. Ca. Ah. 3. in mnrg. Os- 

Huet V. Lord Say and Sele, Sel. borne v. Usher, 6 Bro. P. C. 20. 

Ca. in Cha. 53. Toml. ed. 1 Bro. P. C. 205. Lloyd 

(s) Clare v. Wordell, 2 Vern. 548. v. Johnes, 'J Ves. 37. 

(1) It has been said, in Kentucky, that where a cause survives 
against the representatives of a defendant who dies before a decree, 
either a bill of revivor or original bill may be maiulaiued. Lyle v. 
Bradford, 7 Monroe's R. 115. 



112 FRAME AND END OF THE 

a supplemental bill the benefit of" the former pro- 
ceedings may be obtained(2«) (I). If the party 
whose interest is thus determined was not the sole 
plaintifi' or defendant, or if the property which oc- 
casions a bill of this nature affects only a part of 
the suit, the bill, as to the other parties and the 
rest of the suit, is, as has been before observed, 
supplemental merely. — There seems to be this dif- 
ference between an original bill in the nature of a 
bill of revivor, and an original bill in the nature of a 
supplemental bill. Upon the first the benefit of the 
former proceedings is absolutely obtained, so that 

the pleadings in the first cause, and the de- 
[*73] positions of ^witnesses, if any have been 

taken, may be used in the same manner as 
if filed or taken in the second cause(a:); and if any 
degree has been made in the first cause, the same 
degree shall be made in the second(?/). But in 
the other case a new defence may be made ; the 
pleadings and depositions(2:) cannot be used in the 
same manner as if filed or taken in the same cause ; 
and the decree, if any has been obtained, is no 
otherwise of advantage than as it may be an in- 
ducement to the court to make a similar decree(«). 
The voluntary alienation of property pending a 
suit by any party to it, is not permitted to affect 

(w) 9 Vez. 54, 55. Duchess of Norfolk, Prec. in Chan. 

{x) See Houlditch v. Marquis of 212. See also Coke v. Fountain, 1 

Donegall, 1 Sim. & Stu. 4!,tl. Vern. 413. and City of London, v. 

(y) Clare v. Wordell, 2 Vern. Perkins, 3 Bro. P. C. 602. Toml. 

548; Minshull v. Lord Alohun, 2 ed. as to reading in one cause deposi- 

Vern. 672. 1 Eq. Ca. Ab. 83. 1 tions taken in another. 

Atk.89. (a) See Lloyd v. Johnes, 9 Ves. 

(.r) Earl of Peterborough v. Jun. 37. 

(1) See form in Willis, 340. 



SEVBllAL KIJNDS OF BILLS. 113 

the rights ol' tlic other parties if the suit proceeds 
without disclosure of the fact, except as the ahen- 
ation may disable the party from performing the 
decree of the court(ft). Thus, if pending a suit by 
a mortgagee to foreclose the equity of redemption, 
the mortgagor makes a second mortgage, or as- 
signs the equity of redemption, an absolute decree 
of foreclosure against the mortojaii^or will bind the 
second mortgagee, or assignee of the equity of re- 
demption, who can only have the benefit of a title 
so gained by filing a bill for that purpose(c). But 
upon a bill by a mortgagor to redeem, if the 
mortgagee assigns pendente lite, *lhe as- [*74] 
signee must be brought before the court by 
the mortgagor, who camiot otherwise have a re- 
conveyance of the mortgaged property(<Z). The 
bill necessary in the last case is merely supplemen- 
tary ; but in the former, the bill must be an ori- 
ginal bill in the nature of a cross-bill, to redeem the 
mortgaged property. If tlie party aliening be 
plaintiff in the suit, and the alienation does not ex- 
tend to his whole interest, he may also bring the 
alienee before the court by a bill, which, though in 
the nature of an original bill against the alienee, 
will be supplemental against the parties to the ori- 
ginal suit, and they will be necessary parties to the 
supplemental suit only so far as their interests may 
be affected by the alienation(e). Generally, in 

(6) 2 Ves. & B. 205, 206. 4 Dow. (d) 11 Vci?. 190; and see Wc- 
F. C. 435(1). thcrell v. Collins, 3 Madd. 255(2). 

(c) 2 Atk. 175. 11 Vcs. 199. (c) There is an instance, in which 

(I) Coolc V. Mancius, 3 J. C. R. no. But see L' Eslrange v . Ro- 
binso7i, 1 Hogan, 202. 

(2) Also Metcalfe v. Pulverto/i, 2 K. Sf B. 200. 

15 



> 




114 FRAME AND END OF THE 

cases of alienation jfenclente lite, the alienee is 
bound by the proceedings in the suit after the 
alienation, and before the alienee becomes a party 
to it(d) ; and depositions of witnesses taken after 
the alienation, before the alienee became a party to 
the suit, may be used by the other parties against 
the alienee as they might have been used against 
the party under whom he claims(c). 

Having considered generally the distinc- 
[*75] tions between *the several kinds of bills by 
which a suit become defective or abated may 
be added to or continued, or by which the benefit of 
the suit may be obtained, it remains in this place 
to consider more particularly the frame of the first 
three of those kinds. The other two will form part 
of the subject to be considered under the next 
head. 

1. A supplemental bill must state the original 
bill, and the proceedings thereon(l); and if the 
supplemental bill is occasioned by an event sub- 
sequent to the original bill, it must state that 
event, and the consequent alteration with respect 

the court, in a case of this kind, al- that the alienee may by supplemental 

lowed an alienee of a plaintiff to par- bill, in the nature of an original bill, 

ticipate in certain interlocutory pro- make himself a party to the suit, 

ceedings, without previously requir- Foster v. Deacon, G Madd. 59 ; and 

ing a supplemental bill to be filed for see Binks v. Binks, reported 2 Bligh, 

the purpose of making him a party P. C. 593, note, 

to the suit. Toosey v. Burchcll. 1 (e) See Garth v. Ward, 2 Atk. 

Jac. R. 159. 174. 
(d) It may be observed, however, 

(1) A supplemental bill ought to be filed as soon as the new matter 
sought to be inserted therein is discovered. And if the party proceeds 
to a decree after the discovery of the facts upon which the new claim 
is founded, be will not be permitted afterwards to file a supplemental 
bill in the nature of a bill of review founded on such facts. Pendleton 
V. Fay, 3 Paige's C. R. 204. 



SEVERAL KINDS OF BILLS. 115 

to the parties ; and, in general, the supplemental 
bill must pray, that all the defendants may appear 
and answer to the charges it contains. For if the 
supplemental bill is not for a discovery merely, 
the cause must be heard upon the supplemental 
bill at the same time that it is heard upon the ori- 
ginal bill, if it has not been before heard ; and if 
the cause has been before heard, it must be fur- 
ther heard upon the supplemental matter(y*). If 
indeed the alteration or acquisition of interest 
happens to a defendant, or a person necessary to 
be made a defendant, the supplemental bill may be 
exhibited by the plaintiff in the original suit 
against such person alone, and may pray a decree 
upon the particular supplemental matter alleged 
against that person only(«") ; unless, which is fre- 
quently the case, the interests of the other de- 
fendants may be affected by that decree. 
Where a supplemental bill is merely for *the [*76] 
purpose of bringing formal parties before 
the court as defendants, the parties defendants to 
the original bill need not in general be made par- 
ties to the supplemental (/*). 

2. A bill of revivor must state the original bill, 
and the several proceedings thereon, and the 
abatement ; it must show a title to revive(^), and 
charge that the cause ought to be revived, and 

C/) 2 Madd. R. 60. (h) See Broicn v. Martin, 3 Atk. 

(g) Sec Brown v. Martin, 3 Atk. 217(1). 
217. (t) Com. Rep. 590(2> 

(1) And note 2, page 62, ante. 

(2) If a bill of revivor does not set forth so much of the original , 
bill as to show that the complainant has a title to revive the suit, it is 
demurrable. Phelpx v. Sjyroule^ 4 Simons, 318. 



110 FRAME AND END OF THE 

stand in the same condition with respect to thi- 
parties in the hill of revivor as it was in with re- 
spect to tlie parties to the original bill at the time 
the abatement happened ; and it must pray that 
the suit may be revived accordingly(l)- It may be 
likewise necessary to pray that the defendant may 
answer the bill of revivor, as in the case of a re- 
quisite admission of assets by the representative of 
a deceased party(fc). In this case, if the defen- 
dant does admit assets, the cause may pro- 
ceed against him upon an order of revivor mere- 
ly ; but if he does not make that admission, the 
cause must be heard for the purpose of obtaining 
the necessary accounts of the estate of the de- 
ceased party to answer the demands made against 
it by the suit ; and the prayer of the bill, there- 
fore, in such case usually is, not only that the suit 
may be revived, but also, that in case the defend- 
ant shall iiot admit assets to answer the purposes 
of the suit, those accounts may be taken, and so 
far the bill is in the nature of an original bill. If 
a defendant to an original bill dies before put- 
ting in an answer, or after an answer to 
which ^exceptions have been taken, or [*77] 
after an amendment of the bill to which no 
answer has been given, the bill of revivor, 
though requiring in itself no answer, must pray 

(A:) Prac. Reg. 90. Wy. ed(2). 

(1) Where one complainant files a bill of revivor, another cannot 
take the same course. A second bill would be stricken off the files. 
And even a defect of parties in the first bill affords no reason for keep- 
ing the second on file. Livescy v. Livcseij, 1 Jt. Sf M. 10. 

(2) Douglass V. Shermcm, 2 Paige's C. R. 358. Sec the form of 
such a bill. Jf'illis, 345. 



SEVERAL KIINDS OF BILLS. 117 

that the person against whom it seeks to revive 
the suit may answer the original bill, or so much 
of it as the exceptions taken to tlie answer of the 
former defendant extend to, or the amendment re- 
maining unanswered(l). 

(I) The revised statutes of the Stale of New-York contain pro- 
visions which do away with tlie bill of revivor in many instances, and 
simplify, in other respects, the practice in case of death. 

No suit in chancer}' is to abate by the death of one or more of the 
complainants or defendants when the cause of action survives, but, upon j 
satisfactory suggestion of such death, the suit is to proceed for oragainsli 
the surviving parties. 5 M. S. 184, J 107. The cases intended to be| 
embraced by this section, are those where tiie right of the deceased 
party vests in some one of the survivors ; so that a perfect decree may 
be made as to every part of the subject of litigation, without any alto- \ 
ration of the proceedings or bringing any new parties before the court. ' 
Such is the case of a suit brought by or against two or more executors, 
trustees or joint tenants, where, on the death of one, the whole right of 
action or ground of relief survives in favor of or against the other. In 
such cases, there is, in fact, no abatement as to the survivors ; and upon 
a proper application by either party, on affidavit, showing the fact of 
the death, and that the cause of action has survived, the court will order 
the suit to proceed. Leggelt v. Dubois, 2 Paige's C. R. 212; and see 
Brown v. Story, lb. 594. 

No bill of revivor is necessary to revive a suit against the represen- 
tatives of a deceased defendant ; but the court, upon a petition, may 
order it to stand revived. 2 R. S. 184, ^ 108. This section provides 
for another class of cases where some of the parties survive, and the 
rights of the parties dying do not survive to them, but some other persons 
become vested with the rights and ijiterests, or are subject to the lia- 
bilities of those who are dead. In such cases, the complainants may 
proceed without making those persons parties, provided a decree can be 
made between the surviving parties without bringing such persons be- 
fore the court. The decree, in that case, will not affect those in 
whom the rights of the deceased parties have become vested. LeggcU 
V. Dubois, supni. 

In cases where a complainant dies, and the cause of action does not 
survive, his representatives may, on affidavit of such death, and on mo- 
tion in open court, be made complainants and be permitted to amend 
the bill. 2 R. S. 184, ^ 115; WkUe v. Buloid, 2 Paige's C. R. 475. 
When the representatives do not cause themselves to be made com- 



118 FRAME AND END OF THE 

Upon a bill of revivor the defendants must an- 
swer in eight days after appearance, and submit 
that the suit shall be revived, or show cause to the 
contrary ; and in default, unless the defendant has 



plainants within eighty days after such death, the surviving complainant 
may proceed to make them defendants, as in cases where the repre- 
sentatives of a deceased defendant are made parties. 2 R. S. { 117 ; 
Wilkinson v. Parish, 3 Paige's C- R- 653. If there be no surviving 
complainant, or such an one neglects or refuses to proceed against such 
representatives, the court, upon petition of the original defendant, may 
order such representatives to show cause why the suit should not stand 
revived in their names or the bill be dismissed, so far as the interest of 
such representatives is concerned. J 1 IB, 119. If a defendant dies 
where the cause of action does not survive, and the complainant neglects 
or refuses to procure an order for the revival of the suit, the court may 
order it to stand revived upon the petition of a surviving defendant 
against the representatives of the deceased party. } 120, 121. 

These provisions of the statute, authorizing the revival of a suit on 
motion or petition, extend only to those cases where, by the former 
practice of the court, the proceedings could be revived and continued 
by a simple bill of revivor. Douglass v. Sherman, 2 Paige's C- R- 
358. 

Under the above provisions a suit in chancery may be revived by a 
surviving complainant against the infant representatives of a deceased 
complainant. fVilkinson v. Parish, supra. If the parties against 
whom a suit is sought to be revived are beyond the jurisdiction of the 
court, or cannot be found to be served with the order, a formal bill of 
revivor must be filed, and the like proceedings had to obtain their ap- 
pearance as are required in the case of absent, concealed or non-resi- 
dent debtors, lb. Partition suits are embraced by these sections. Ih. 

As to office practice and service under these provisions,~see the 
sections themselves and all the cases above referred ; and see Pruen v. 
Lunn, 5 Russ.3 . 

It may be necessary to revive a suit against the personal representa- 
tives of a deceased defendant, who has disclaimed, and against whom 
the complainant waives all relief. Glassington v. Thicaites, 2 Russ. 
458. 

As to reviving on a conditional decree against a defendant, in case 
one of the complainants dies, see Executors qfJU'Gough v. Executors 
of Hanninglon, 1 Hogan, 23. 



SEVERAL KINDS OF BILLS. 119 

obtained an order for further time to answer, the 
suit may be revived without answer, by an order 
made upon motion as a matter of course(/). The 
ground for this is an allegation that the time al- 
lowed the defendant to answer by the course of 
the court is expired, and that no answer is put 
in; it is therefore presumed that the defendant 
can show no cause against reviving the suit in the 
manner prayed by the bill(m). 

An order to revive may also be obtained in like 
manner if the defendant puts in an answer sub- 
mitting to the revivor, or even without that sub- 
mission, if he shows no cause against the 
revivor. Though the suit *is revived of [*78] 
course in default of the defendant's answer 
within eight days, he must yet put in an answer if 
the bill requires it ; as, if the bill seeks an admis- 
sion of assets, or calls for an answer to the origi- 
nal bill, the end of the order of revivor being only 
to put the suit and proceedings in the situation in 
which they stood at the time of the abatement, 
and to enable the plaintiff to proceed accordingly. 
And notwithstanding an order for revivor has been 
thus obtained, yet if the defendant conceives that 
the plaintiff is not entitled to revive the suit 
against him, he may take those steps which are 

(I) See Harris v. Pollard, 3 P. necessary to warrant any proceeding 

Wms. 348. after abatement, 1 Ves. 186. Roun- 

(in) The court, after abatement of dell v. Currer, 6 Ves. 350, except 

a suit, has acted without revivor in proceedings to compel revivor, or to 

some instances, where the rights of prevent injury to the surviving par- 

the parties have been fully ascertain- ties, if the persons entitled to revive 

ed by decree, or by subsequent pro- neglect to do so(l). 
ceedings ; but in general revivor is 

(I) And see Leggett v. Dubois, 2 Paige's C. R, 2i3 ; and note 1, 
at p. 58, ante. 



120 FIIAMK AMD END OF THE 

necessary to prevent the furtiier proceeding on 
the bill^ and which will be noticed in treating of 
the different modes of defence to bills of revivor ; 
and though these steps should not be taken, yet if 
the plaintiff docs not show a title to revive, he can- 
not linallj haxe the benefit of the suit when the 
determination of the court is called for on the sub- 
ject(/«). 

If a decree be obtained against an executor for 
payment of a debt of his testator, and costs, out of 
the assets, and the executor dies, and his repre- 
sentative does not become the representative of 
the testator, the suit may be revived against the 
representative of the testator, and the assets of the 
testator may be pursued in his hands, without re- 
viving against the representative of the original 
defendant(o). 

After a cause is revived, if the person reviving 
linds the original bill to require amendment, and 
the pleadings are in such a state that 
[*79] amendment of the *bill would be permitted 
if the deceased party were living, the bill 
may be amended notwithstanding the death of 
that party, and matters may be inserted w^hich ex- 
isted before the original bill was filed, and stated 
as if the deceased party had been living(/?). 

After a decree, a defendant may file a bill of 
revivor, if the plaintifis, or those standing in their 

(n) 3 p. Wins. 318(1). (yj) Kcli-ps v. Paine, 15 March, 

(o) 3 Atk. 773 ; and see Johnson 1745. Philips v: Derbie, Dick. 98. 
V. Peck, 2 Yc^. 465. 



(1) A purciiasor iiikler a suit caiiiiol. revive. Backhouse v. J\Iid- 
(llclun, BVceni. 132. 



SEVERAL KINDS OF BILLS. 121 

Hght, neglect to do ii(q)- For then the rights of 
the parties are ascertained, and plaintiffs and de- 
fendants are equally entitled to the benefit of the 
decree, and equally have a right to prosecute it(r). 
The bill of revivor in this case, therefore, merely 
substantiates the suit, and brings before the court 
the parties necessary to see to the execution of 
the decree, and to be the objects of its operations, 
rather than to litigate the claims made by the se- 
veral parties in the original pleadings(5), except 
so far as they remain undecided. In the case of a 
bill by creditors on behalf of themselves and other 
creditors, any creditor is entitled to revive(/). 
A suit become entirely abated may be *re-[*80] 
vived as to part only of the matter in litiga- 
tion, or as to part by one bill, and as to the other 
part by another. Thus, if the rights of a plaintiff 
in a suit upon his death become vested, part in his 
real, and part in his personal, representatives, the 
real representative may revive the suit so far as 
concerns his title, and the personal so far as his 
demand extends(««). 

3. A bill of revivor and supplement is merely a 
compound of those two species of bills, and in its 

(7) The general proposition, that 691, and Lord Stowell v. Cole, 2 

a defendant or his representatives, if Vcrn. 296. 

he or they have an interest in the (s) See Finch v. Lord Winchelseaj 

further prosecution of the suit, may 1 Lq. Ca. Ab. 2. 

revive, if the plaintiffs, or those stand- (I) That is, of course, after he hath 

ing in their right, neglect so t,i do, proved his debt. See Pitt and the 

seems to be now fully established, creditors of the Duke of Richmond, 

See Ke7it v. Kent, Prec. in Chan. 1 Eq. Ca. Ab. 3; and see Dixon v. 

197. 1 Eq. Ca. Ab. 2. 2 Vern. 219. lV>/att, 4 Madd. 392. 1 Sim. and 

297. Williams v. Cooke, 10 Ves. Stu. 494. And, in such a suit, the 

406. Uorwood\. Schmcdcs, 12 Ves. personal representative of one of the 

■311. And see Gordon v. Bertram, plaintiffs deceased may revive. Bur- 

I Meriv. 154. Adamson v. Hall, 1 ney v. Morgan, 1 Sim. and Stu. 358. 

Turn. R. 258. BoUon v. Bolton, 2 (m) Ferrers v. Cherry, 1 Eq. Ca, 

Sim. & Stu. 371. Ab.3, 4. 



(r) See, however, ^Anon. 3 Atk. 



16 



122 FRAME AND END OF THE 

separate parts must be framed and proceeded upon 
in the same manner. 

III. Bills in the nature of original bills, though 
occasioned by former bills, are of eight kinds : 1. 
Cross-bills. 2. Bills of review, to examine and re- 
verse decrees signed and enrolled. 3. Bills in the 
nature of bills of review, to examine and reverse 
decrees either signed and enrolled, or not, brought 
by persons not bound by the decrees. 4. Bills 
impeaching decrees upon the ground of fraud. 5. 
Bills to suspend the operation of decrees on special 
circumstances, or to avoid them on the ground of 
matter subsequent. 6. Bills to carry decrees into 
execution. 7. Bills in the nature of bills of revi- 
vor. And 8, bills in the nature of supplemental 
bills. 

1. A cross-bill is a bill brought by a defendant 

against a plaintiflr(:c), or other parties in a 
[*81] former *bill depending, touching the matter 

in question in that bill(i/)(l). A bill of this 

(x) It has been decided, that a (y) For an example of the sense in 

cross-bill may be filed in Chancery which this proposition is to be nnder- 

to an original bill in the Exchequer, stood, see Hilton v. Barrcw, 1 Vca. 

Glegg V. Legh, 4 Madd. 193. Jr. 284, and see Prg^g'oW.v. WiV/ta^ns, 

Parker v. Leigh, C Madd^llS. 6 Madd. 95. 



(1) Galatian v. Erioin, 1 Hopk. 58. It seems, that a cross.bill 
may set up additional facts not alleged in the original bill, where they 
constitute part of the same defence, relative to the same subject matter. 
Underhill v. Van Cortlandt, 2 J. C. R. 339. 355. But it must be 
confined to the subject matter of the bill. J\lay v. Armstrong, 3 J. J. 
Marshall's R. 262. A bill which does not pray that the cause may be 
heard at the same time with another cause, and one decree be had in bolb, 
is not, iu form, a cross-bill. Wright v. Taylor, 1 Edwards' V. C-R. 226. 

Service of process is made, upon the filing of a cross-bill. Ander- 
son V. Ward, 5 Monroe's R. 420. Such a bill cannot contradict the 
assertions contained in the original answer. Hudson v. Hudson's 



SEVERAL KINDS OF BILLS. 123 

kind is usually brought to obtain either a necessary 
discovery, or full relief to all parties. It frequently 
happens, and particularly if any question arises be- 
tween two defendants to a bill, that the court cannot 
make a complete decree without a cross-bill or 
cross-bills to bring every matter in dispute (1) 
completely before the court litigated by the proper 
parties, and upon proper proofs. In this case it be- 
comes necessary for some or one oC the defend- 
ants to the original bill to file a bill against the 
plaint ifi" and other defendants in that bill, or some 
of them, and bring the litigated point properly be- 
fore the court(2;). A cross-bill should state the ori- 
ginal bill, and proceedings thereon, and the rights 
of the party exhibiting the bill which are necessary 
to be made the subject of cross litigation, or the 
ground on which he resists the claims of the plain- 
tiff in the original bill, if that is the object of the 
new bill. But a cross-bill being generally 
considered as a defence(a), or as a *pro- [*82] 
ceeding to procure a complete determina- 
tion of a matter already in litigation in the court, 
the plaintiff is not, at least as against the plaintiff 

(z) There is an instance, however, plaintiff', and submits to perform the 

in which this court will, it seems, same, for, in such a case, if the court 

contrary to the old practice, give the decide ia favor of that stated by the 

benefit of a cross-bill to a defendant defendant, it wiil decree the same to 

upon his answer, namely, where the be executed fife v. Claydon, 13 

original bill is for specific perform- Ves. 546. 15 Ves. 525. 

ance, and he proves an agreement dif- {a) 3 Atk. 812(2). 
ferent from that insisted on by the 



executors, 1 Randolph's R. 117. See more as to crots-bills, p. 83, and 
notes there. 

(1) Rogers v. MMacham, 4 J. J. Marshall's R. 37; Troup r. 
Haight, 1 Hopk. C. R. 239. 

(2) Galatian v. Erwin, supra. 



124 FRAME AND END OF THE 

in the original bill, obliged to show any ground of 
equity to support the jurisdiction of the court(6). 

A cross-bill may be filed to answer the purpose 
of a plea puis darrein continuance at the common 
law. Thus, where pending a suit, and after re- 
plication and issue joined, the defendant, having 
obtained a release, attempted to prove it viva voce 
at the hearing, it was determined that the release 
not being in- issue in the cause, the court could not 
try the fact, or direct a trial at law for that purpose; 
and that a new bill must be filed to put the release 
in issue. In the case before the court, indeed, the 
bill directed to be filed seems to have been intended 
to impeach the release on the ground of fraud or 
surprise, and therefore to have been a proceeding 
on the part of the plaintiff'in the original bill. But 
it was clearly determined that without being put 
in issue in the cause by a new bill it could not be 
used in proof(c). 

Upon hearing a cause it sometimes appears that 
the suit already instituted is insufficient to bring 
before the court all matters necessary to enable it 
fully to decide upon the rights of all the parties. 
This most commonly happens where persons in 

opposite interests are co-defendants, so that 
[*83] the *court cannot determine their opposite 

interests upon the bill already filed, and the 
determination of their interests is yet necessary to 

(6) Dohlt V. Potman, Hardr. 160. 19. 3 Swanst. 472. 474. See as to 

And see Sir John Warden's case, filing a supplemental bill where % 

mentioned by Blackstone, in 1 Bl. matter has not been properly put in 

Rep. 132. issue. Jones v. Jones, 3 Atk. 110. 1 

(c) Hayne v. Ilayne, 3 Gh. Rep. Jac. and W. 339. 

(1) See the form of such a bill, Willis, 364, 



SEVERAL KINDS OF BILLS. 125 

a complete decree upon the subject-matter of the 
suit. In such a case, if upon hearing the cause the 
difficulty appears, and a cross-bill has not been ex- 
hibited to remove the difficulty, the court will di- 
rect a bill to be filed, in order to bring all the 
rights of all the parties fully and properly for its 
decision(l); and will reserve the directions or de- 

(1) In Field \. Schieffelin, 7 J. C. R. 250, it is said, that the court 
may, at a hearing, direct a cross-bill to be filed, when it appears that 
the first suit is insufficient to bring before the court the rights of the 
parties, and the matters necessary to a full and just determination of 
the cause. But see Slerrrj v. Servant, 1 lb. 62, and White v. Buloid, 
2 Paige's C. R. 164. This latter case contains so much of practical 
value in relation to cross-bills, that an extract from it may be of ser- 
Tice: — "The practice in relation to cross-bills does not appear to be 
" well settled, either in this state or in the English court of chancery. 
" It may, therefore, be necessary to look into the origin of the practice 
" and notice the changes it has undergone, for the purpose of applying 
" its principles to the present practice of this court under the new mode 
" of taking proofs openly, or in open court before the circuit judges, 
** as was done in the late equity courts. The bill and cross-bill were 
"derived from the civil law ; and the answer to the convenlio and re- 
" conventio in the Roman tribunal. If the reconventio came in before ,- 
" the litis^qntestalio OT^xmng^of t he issue in the suit, it was in time, 
" and both causes went on pari passu. The same probatory term was 
♦' assigned to both ; and the same time was given for publication. It 
" is from this we find in the old books of practice, that the cross-bill 
N/ " should be filed before or at the time of answering the original bill, w 

" which generally answered to the litis conteslalio of the Roman law. '^ /^ 
,/^ *' If it did not come in before that time, the causes could not proceed 
"together, as tiie original cause was then gone i\ om \.\\e prcetorian 
''forum to ihejudices. (2 Bro. C. Sf A. L. 348. How. Eq. side, 287.) 
" Where the reconventio or cross-bill came in after the litis contestatio \ 
" or joining of issue, it did not stop the complainant in the examination 
" of his witnesses, unless the defendant in the reconventio was in con- 
" tempt for not answering. If it came in even after publication, it was 
" not too late, but the party must go to a hearing on the testimony 
" taken in the original suit, and on the answer of the defendant in the 
" cross suit ; because, after publication passed, no witnesses could be 
w examined to the same matter as to which proofs had already been 



5^ X /?A . ^- > (/^.^-^ ) 



X 



126 FRAME AND END OE THE 

clarations which it may be necessary to give or 
make touching the matter not fully inHtigationby 
the former bill, until this new bill is brought to a 
hearing(<Z). 

(d) If a creditor who hath come in hearing of the original cause, he may 

under a decree against his debtor re- without dirrection of the court, seek 

quire rehef for the purpose of assisting it by a cross-bill. Latouche v. Lord 

the investigations before the master, Dunsany, 1 Sch. and Lefr. 137. 
which cannot be obtained by a re- : 

" taken and published. (Cur. Cane. 337. Gilb. For. Rom. 47. Ward 
" V. Eyles, Mosel, 332.) The English prr ctice at the present day ap- 
" pears to be, to grant an order of course to stay publication until a 
" fortnight after the answer to the cross-bill has come in, where the 
" cross-bill has been filed in time, that is, before the issue has been 
"joined in the original cause. [Hinde, 34. 1 ^tk. Rep. 2\.) But, 
" where the cross-bill is cot filed until the original cause has been pro- 
" ceeded in, the motion to enlarge publication must be special, and 
" upon notice to the adverse party, that the court may judge of it on 
" the circumstances. {Aylelt v. Easy, 2 Ves. Sen. 336). In no case is 
" the complainant in the original suit compelled to stay proceedings 
" therein without a special order for that purpose. (J^Toel v. King, 2 
" Mad. Rep. 392). After both causes are at issue, or in a situation to 
" be heard, the complainant in the cross suit may, on motion, have an 
" order that both causes be heard together ; a copy of which is to be 
" served on the solicitor for the complainant in the original cause. 
«' But, notwithstanding this order, the delay of the complainant in the 
" cross suit will not be permitted to delay the hearing of the original 
" cause. (How. Eq. side 289). The practice on this subject in the 
" Irish court of chancery is undoubtedly more conducive to the ends of 
"justice, and is best adapted to our system of taking testimony orally. 
" There, the cross-bill must be filed on oath, and the certificate of coun- 
" sel that it is not intended for delay and that it is necessary for the at- 
" tainment of justice in the cause ; and the proceedings in the original 
"cause are not to be delayed in any case, unless upon the special order 
" of the court, founded upon notice of the application to the complain- 
" ant therein." And see Rule 42, of Jf. Y. Chancery. 

Chancellor Walworth does not, in the above case, refer to the source 
from whence begets the information as to the Irish practice. It was 
obtained, it is presumed, from Elliott v. Millet, and Millet v. Elliott, 1 
Hogan's C. R. 125 ; and the order from O'Keefe's rules there given. 

By the English practice, if a bill and cross-bill are filed, the com- 
plainant in the original bill has a right to the first answer and may 



1 



SEVERAL KINDS OF BILLS. 127 

2. The object of a bill of review is to procure an 
examination and reversal of a clecree(e) made upon 
a former bill, and signed by the person holding the 
great seal, and cnrollcd(jf ). It may be brought 
upon error of law appearing(^) in the body of the 

(c) (1) There c.nn he no bill of ing tithes in London, under the 
review upon a decree of the court on statute 37 Hen. 8. c. 12. Pridgeon's 
exceptions to a decree of comtnission- Case, Cro. Car. 351. 
ers of charitable uses, under the (/) Tothill, 47. Boh. Curs. Cane, 
statute. See Windsor v. Inhabitants 353. ' Taylor v. Sharp, 3 P. Wms. 
of Farnham, Cro. Car. 40. Saul v. 371(2). 

Wilson, 2 Vcrn. 118. Nor, upon a {g) 1 Roll. Ab. 382. Venahles v. 

decree of this court confirming a Foijle, 1 Ca. in Cha. 4. Tothill, 41. 
judgment of the lord major, respect- 
move to stay proceedings in the cross cause till the original bill is 
answered, although the complainant in the cross-bill maj' be in a situa- 
tion to enforce an answer first. Harris v. Harris, 1 Turn. Sf R. 165. 

A defendant cannot move for or obtain cross relief against the com- 
plainant, unless he files a cross-bill. Hare v. Collins, 1 Hogan, 193. 
And one defendant, it has been said, in Kentucky, cannot have a decree 
against another without a cross-bill. Talbot v. M-Gee, 4 Monroe's R. 
378. But this may be questioned. Elliot v. Pell, 1 Paige's C. R. 
263. 

By the English practice, substituted service of a subpoena in a cross 
cause is enough. Gardiner v. Mason, 4 B. C. C. 478. Query — Whe- 
ther it would be allowed by the practice of the State of New-York .'' 
See Sawyer v. Sawyer, 3 Paige's C. 22. 263. 

A cross-bill (on account of an express rule of the Irish court of 
chancery) will be taken off the file, if put on without a certificate" of 
couDsel. If the certificate of counsel has been subjoined, but the 
complainant has not filed the necessary affidavit, no subpoena to answer 
can issue. Elliot v. Millet, 1 Hogan's R. 125. 

(1) Elliott V. Pell, 1 Paige's C. R. 263. 

(2) Gelston v. Codwise, 1 J. C. R.195; Wiser v. Blackly, 2 lb. 488 ; 
Furman v. Coe, on appeal, 1 C. C. E. 96 ; Lansing v. Albany In- 
surance Company, 1 Hopk. 102; Elliott v. I ell, 1 Paige's C. R. 
263; Litt. Sel. Ca. 125; Garner's administrator v. Strode, 5 Litt. 
315; M'Cracken's heirs, I Bibb 455; Kenon's executors v. William- 
son, 1 Hayw. 350 ; Bowyer v. Lewis, 1 Hen. Sf Munf. 558 ; Ellzley 
V. Lane's executors, 2 76. 589 ; Anon, 2 Law Recorder (Irish) 462. 

As to deposit on filing a bill of review, see Webb v. Pell, 1 Paige's 
C. R. 564; and 173, Rule ofJ^T. Y. Chancery. 

As to the practice in Virginia upon a bill of review, see note to 



128 



FRAME AND END OF THE 



[*84] *decree itself(//), or upon discovery of new" 

matter(/). In the first case the decree 

can only be reversed upon the ground of the ap- 

(h) Griee v. Goodwin, Free, in C. 73. Toml. ed. And see 17 Ves. 

Chan. 2(J0. 3P. Wnis. 371(1) 178. This term includes new 

(i) Le Neve v. Aorris, 2 cro. P. evidence of facts put in issue, which 



Ellxley V. Lane's executors, supra ; Quarrier v. Carter's representa- 
tives, 4 Hen. S^ J\lunf. 242. 

(1) JViscr V. Blachly, 2 J. C. R. 488 ; Furman v. Coe, on appeal, 
1 C. C. E. 96. New matter, it has been said, is no ground for a bill of 
review, unless it was discovered after the decree was pronounced. 
Winston V. Executors of Johnson, 2 Jlunf. 305 ; but this is not so, it is 
sufficient if it did not come to his knowledge till after publicatioD, Of 
when, by the rules of the court, the party could not make use of it. 
If it came to the kDov^-ledge of the party's attorney, solicitor, or agent, 
before the cause was heard, it is considered as notice to the party. 
Morris v. Le JYeve, 3 Aik. 35 ; and see Standish v. Radley, 2 Alk. 
199 i Lord Portsmouth v. Lord Effingham, 1 Ves. Sin. 434. 

And it has been said, in Kentucky, that the complainant must allege 
new matter not necessarily in issue upon the original bill. Tilman V. 
Tilman, 4 J. J. Jlarshairs R. ]19. 

A bill of review will not be sustained on the ground that the chan- 
cellor who made the decree was interested in the slock of the conr- 
plainants, a corporation, if the decree was by consent or merely formal, 
so that the chancellor did not personally exercise his judgment in it. 
Nor will it be sustained for newly discovered matter of error in the 
proceedings, which, with ordinary diligence, the party might have dis- 
covered before. Nor unless the complainant shows himself aggrieved 
by the decree. Lansing v. Albany Ins. Co., Hopk. 102. 

And additional circumstances, which merely confirm facts proved \a 
the origmal cause, do not furnish sufficient grounds for a bill of review. 
Randolph's executors v. Randolph's executor, 1 Hen. S^ Munf. 180. 
Newly discovered evidence, wiiich goes to impeach tlie character of 
witnesses examined in the original suit, or of cumulative evidence to a 
litigated fact, is not sufficient. The matter of fact newly discovered 
must be relevant, and materially affecting the ground of the decree. 
Livingston v. Hubbs, 2 J. C. R. 124. 

A party who cannot be benefited by the reversal or modification of 
the former decree, should not file a bill of review. Webb v. Pell, 3 
Paige's C. R. 368. 

Altbougb bills of review are not strictly within the statutes of 



SEVERAL KINDS OF BILLS. 



120 



parent error (ifc) ; as if an absolute decree be made 
against a person, who upon the face of it appears 
to have been at the time an infant(Z). A bill of 
this nature may be brought without the leave of 
the court previously gi\en(in)(l). But if it is 
sought to reverse a decree signed and enrolled, 
upon discovery of some new matter(n), the leave 
of the court must be first obtained(o) ; and this will 
not be granted but upon allegation upon oath that 
the new matter(2?) could not be produced, or used 
(q) by the party claiming the benefit of it at the 
time when the decree was made(r). If the court 

would materially affect the judgment (t?i) 2 Atk. 534. Houghton v. 

ofthe court, 16 Ves. 350. See Ord West,2BTo. F. C. 88. Toml. ed. 

V. xVoei, 6 Madd. 127, which, although (n) 2 Ves. 576. 3 P. Wms. 372. 

a case relating to a supplemental bill Nels. Rep. 52. 

in the nature of a bill of review, (o) Tothill, 42. 2 Atk. 534. 17 

seems to show that the matter must Ves. 177.(2). 

be material, and such at the least as (p) See O'Brien v. O'Connor, 2 

will raise a fit subject for judgment Ball and B. 146. 

in the cause. (q) See 1 Ves. 434. Paterson ^ 

{k) Lady Crambronev. Dalmahoy, Slaughter, Ambl. 292, and 16 Ves. 

1 Ch. Rep. 231. Nels. Rep. 86. 350. 

Prac. Reg. 94. Wy. ed. 4 Vin. (r) 2 Bro. P. C. 71. Toml. ed. 
Ab.414. Pract. Reg. 95. Wy. ed. Ambl. 

(I) Prac. Reg. 225. Wy. ed. 17 293(3). 
Ves. 178. 

limitation, yet a court of equity, in analogy to the provisions of the ju- 
diciary act concerning appeals, will not allow a bill of review to be filed 
after five years. Thomas v. Harvie, 10 Wheat. 146. Yet see EtZ- 
toards v. Carml, 5 B. P. C. 466 ; 6 B. C C. 395 ; Smith v. Clay, 
Ambl. 645, but more full, 3 B. C. C. 639. And, query— whelher a bill 
of review on the ground of newly discovered evidence will be governed 
by such limitation .'' In such case it would seem to be discretionary 
with the court. 76. 

As to the mode of dc'^ence to a bill of review, see p. 203, post. And 
for the form of a bill of review for error of law apparent in the decree, 
see TVillis, 368. 

(1) H^ebb V. Pell, 1 Paige's C. R. 564; Edmonson v . J\loseby m 
heirs, 4 J. J. Marshall's R. 500 ; Bleight v. M'llvoy, 4 Monroe's R. 
145. 

(2) Ibid. 

(3) Livingston v. Hubbs, 3 J. C. R. 124 ; Respass v. M'Clenahan, 

2 Marsh. 578 ; Winston v. executor of Johnson, 2 J\lunf. 305, 

17 



130 FRAME AND END OF THE 

is satisfied that the new matter is relevant and 
material, and such as might probably have 
[*85] Occasioned a different determination(^) it 
will permit a bill of review to be filed(r). 

Error in matter of form only, though apparent 
on the face of a decree, seems not to have been 
considered as sufficient ground for reversing the 
decree(5)(l); and matter of abatement has also 
been treated as not capable of being shown for 
error to reverse a decree(/). 

It has been questioned whether the discovery of 
new matter not in issue in the cause in which a 
decree has been made, could be the ground of a 
bill of review(M); and whether the new matter on 
which bills of review have been founded has not 
always been new matter to be used as evidence to 
prove matter in issue, in some manner, in the ori- 

(q) Lord Portsmouth v. Lord v. Webb, 2 Cox, R. 3. 

Effingham, 1 Ves. 430. Bennet v. (s) Jones v. Kenrick, 5 Bro. P. C. 

Lee, 2 Atk. 529. And see Willan 244, Toml. ed., but the cause was 

V. Willan, 16 Ves. 86. compromised. Hartwell v. Tovn- 

(r) Lord Portsmouth v Lord send, 2 Bro. P. C. 101. Toml.ed. 

Effingham,, 1 Ves. 430. Young y. (t) Slingsby \. Hale, ICa. inCha. 

Ktighly, 16 Ves. 348. But leave to 122. S. C. 1 Eq. Ca. Ab. 164. 

file a bill of review is matter of dis- (u) See 16 Ves. 354. 
cretion with the court. See Wilson 

(1) A bill of review for error apparent must be for an error in law, 
arising out of the facts admitted by the pleadings, or recited in the de- 
cree itself as settled, declared or allowed by the court. It cannot be 
sustained upon the ground that the court has decided wrong upon a 
question of fact. Webb v. I' ell, 3 Paige's C. R. 368 ; and see 
Dougherty v. Morgan's executors, 6 Monroe's R, 505. 

Id case of miscasting and miscounting, where the matter demonstra- 
tively appears from the decree itself to be mistaken, it may be explained 
and reconciled by order. Setonon Decrees, 399, and cases there. 

It has been said, in Kentucky, that a bill of review may be 
brought either for error apparent upon the face of the record, or for 
matters dehors the record. Brewer v. Boorman, 3 J. J. Marshall't 
R. 492. 



SEVERAL KINDS OF BILLS. 131 

ginal bill(i*). A case, indeed, can rarely happen 
in which new matter discovered would not be, in 
some degree, evidence of matter in issue in the 
original cause, if the pleadings were properly 
framed. Thus, if after a decree, founded on a re- 
vocable deed, a deed of revocation, and new limi- 
tations, were discovered; as it would be a 
necessary allegation of title under *the re- [*86] 
vocable deed that it had not been revoked, 
the question of revocation would have been in 
issue in the original cause, if the pleadings had 
been properly framed. So if after a decree founded 
on a supposed title of a person claiming as heir, a 
settlement or will were discovered which destroyed 
or qualified that title, it would be a necessary alle- 
gation of the title of the person claiming as heir, 
that the ancestor died seised in fee-simple, and 
intestate. Cut if a case were to arise in which the 
new matter discovered could not be evidence of 
any matter in issue in the original cause , and yet 
clearly demonstrated error in the decree, it should 
seem that it might be used as ground for a bill of 
review, if relief could not otherwise be obtained(x). 
It is scarcely possible, however, that such 
a case should arise which might not be 
deemed in some degree a case of fraud, and the de- 
cree impeachable on that ground. In the case 

(m) Ambl. 293. v. Noel, G Madd. 1-27, and Bingham 

(a:) This court refused its leave to v. Dawson, 1 Jac. R. 213, which, al- 

file a bill of review, where it would though cases relating to supplemental 

have been the means of introducing bills in the nature of bills of review, 

an entirely new case, of the matter illustrate this principle. See also 

of which the plaintiff was sufficiently Ludloxo x. Lord Macartney, 2 Bro. 

well apprized to have been able, with C. C. G7. Toml. ed. Le Neve v. 

the exertion of reasonable diligence, Norris, 2 Bro. P. C. 73. Toml. ed. 

to have brought the same at first com- M'Neill v. Cahill, 2 Bligh, P. C, 

pletely before the court. Young' v, 228. 
KeigMy, 16 Ves. 348. And see Ord 



132 FRAME AND END OF THE 

where the doubt before mentioned appears to have 
been stated, the new matter discovered, and 
[*87] alleged as ground for a bill of review, *was 
a purchase for valuable consideration, with- 
out notice of the plaintiff's title : this could only 
be used as a defence ; and it seems to have been 
thought that although it might have been proper, 
under the circumstances, if the new matter had 
been discovered before the decree, to have allowed 
the defendant to amend his answer and put it in 
issue, yet it could not be made the subject of a bill 
of review ; because it created no title paramount to 
the title of the plaintiff, but merely a ground to in- 
duce a court of equity not to interfere. And where 
a settlement had been made on a marriage in pur- 
suance of articles, and the settlement following 
the words of the articles had made the husband 
tenant for life, with remainder to the heirs-male 
of his body, and the husband claiming as tenant in 
tail under the settlement had levied a fine, and de- 
vised to trustees, principally for the benefit of his 
son, and the trustees had obtained a decree to 
carry the trusts of the will into execution against 
the son, the son afterwards, on discovery of the 
articles, brought a bill to have the settlement 
rectified according to the articles, and a decree 
was made accordingly. In this case the new mat^ 
ter does not appear to have been evidence of mat- 
ter in issue in the first cause, but created a title 
adverse to that on which the first decree was 
made(?/). 

(y) Roberts v. Kingsly, 1 Ves. 238. the hearing an inquiry was directed 

If this case is accurately reported, the as to the fact of the discovery of the 

bill seems to have been filed without articles. See Young v. Keighly, 16 

the previous leave of the court j and on Ves. 348. 



SEVERAL KINDS OF BILLS. 133 

*A bill of review upon new matter disco- [*88] 
vered has been permitted even after an 
affirmance of the decree in parliament(2;) ; but it 
may be doubted whether a bill of review upon 
error in the decree itself can be brought after af- 
firmance in parliament(a). If upon a bill of re- 
view a decree has been reversed, another bill of 
review may be brought upon the decree of re- 
versal(6). But when twenty years have elapsed 
from the time of pronouncing a decree, which has 
been signed and enrolled, a bill of review can- 
not be brought(c); and after demurrer to a 
billof review has been allowed, a new bill of re- 
view on the same ground cannot be brought(<Z). 
It is a rule of the court, that the bringing a bill of 
review shall not prevent the execution of the de- 
cree impeached ; and if money is directed to be 
paid, it ought regularly to be paid before the bill 
of review is filed, though it may afterwards be 
ordered to be refunded(e)(2). 

(jz) Barhon v. Searle, 1 Vern. 1 Bro. P. C. 453. Toml. ed. Ed- 

416 ; and see 16 Ves. 89. wards v. Carroll, 2 Bro. P. C. 98. 

(a) 1 Vern. 418. Toml. ed. Lytton v. Lytton, 4 Bro. 

(b) 2 Chan. Prac. 633. And see C. C. 441.(1). 

Neat V. Robinson, Dick. 15 ; but see {d) Dunny v. Filmore, 1 Vern. 

1 Vern. 417. 135. 

(c) Sherrington v. Smith, 2 Bro. (e) Ord. in Cha. ed. Bea. 3. 2 
P, C. 62. Toml. ed. Smythe v. Clay, Brown P. C. 65. Toml. ed. note. 

(1)"See Thomas v. Harvie, 10 Wheat. 146. 

(2) Wiser v. Blachly, 2 J. C. R. 488. Nothing will excuse the 
party from paying the money and costs, but evidence of his inability to 
perform it. There is wisdom in the establishment of such a provision 
and it ought to be duly enforced. Its object is to prevent abuse in the 
administration of justice, by filing bills of review for delay and vexa- 
tion, or otherwise protracting the litigation to the discouragement and 
distre-<<s of the adverse party. lb. ; Livingston v. Hubbs, 3 J. C. R. 
124. It has been said, in North Carolina, that placing the amount of 
a decree in the hands of the master, in bank notes, is such a substan-> 



134 FRAME AND END OF THE 

In a bill of this nature it is necessary to state(/) 
the former bill, and the proceedings thereon; the 
decree, and the point in which the party exhibit- 
ing the bill of review conceives himself 
[*89] aggrieved by *it(^); and the ground of law, 
or matter discovered, upon which he seeks 
to impeach it ; and if the decree is impeached on 
the latter ground, it seems necessary to state in 
the bill the leave obtained to file it(A), and the fact 
of the discovery(z). It has been doubted whether, 
after leave given to file the bill, that fact is travers- 
able; but this doubt may be questioned if the de- 
fendant to the bill of review can oflfer evidence that 
the matter alleged in the bill of review was within 
the knowledge of the party who might have taken 
the benefit of it in the original cause(A:). The bill 
may pray simply that the decree may be reviewed, 
and reversed in the point complained of, if it has 

(y) 2 Pr»x. Aim. Cur. Can. 520. upon a supplemental bill in nature of 

2 Chan. Prac. 62I(. a bill of review, the cour;, seemed to 

(g) 4 Vin. Ab. 414. PI. 5. be of opinion that the fact of the dis- 

(h) See 1 Vern. 292. Boh. Curs, covery was traversable ; and not being 

Cane. 396, 397(1). admitted by the defendant, ought to 

(£) Hanbury against Stevens, ha^e been proved by the plaintiff to 

Trin. 1784, in chancery. entitle him to proceed to the hearing 

(^) In the above-mentioned case of of the cause. 
flanbury and Stevens, which was 

tial compliance with the order of the court as will save the party from 
an imputed neglect or contempt, and authorize the filing of a bill of 
review. Taylor v. Person, 2 Hawks' R. 298. 

(1) And it has been said, in the chancery of Kentucky, that a bill 
of review will not be granted upon a fact which was formerly in issue 
in the same cause or evidence newly discovered, unless the evidence be 
in writing or of record. Head v. Had's administrator, 3 A. K. 
Marshall's R. 121. Also, tliat where, upon a bill of review, the de- 
cree is reviewed or impeached, the defendants, provided the decree was 
obtained by default, should be permitted to file answers or to plead, so 
that the matter of the original bill may be litigated between the parties, 
Mfiy^sback V. Fountleroy, 3 J. J. Marshall's R. 536. 



SEVERAL KINDS OF BILLS. 135 

not been carried into exccution(Z). If it has been 
carried into execution the hill may also pray the 
further decree of the court, to put the party com- 
plaining of the former decree into the situation in 
which he would have been if that decree had not 
been executed. If the bill is brought to review the 
reversal of a former decree, it may pray that the 
original decree may stand(>w). The bill may also, 
if the original suit has become abated, be at the 
same time a bill of revivor(w)( 1). A supple- 
mental *bill may likewise be added, if any [*90] 
event has happened w hich requires it(o) ; 
and particularly if any person not a party to the 
original suit becomes interested in the subject, he 
must be made a party to the bill of review by way 
of supplement( p). 

To render a bill of review necessary, the decree 
sought to be impeached must have been signed and 
enrolled. If, therefore, this has not been done, a 
decree may be examined and reversed upon a 
species of supplemental bill, in nature of a bill of 
reviev^, where any new matter has been discovered 
since the decree(^). As a decree not signed and 

(l) 17 Ves. 177. (?) 2 Atk. 40. 178. 3 Atk. 811, 

?m'^ 2 Chan. Prac. 634. Gartside v. Isherwood, Dick. 612. 

(n) 2 Prax. Aim. Cur. Cane. 522. 17 Ves. 177(2). Or, at the least, 

(0) price V. Kcyle, 1 Vcrn. 135. the new matter should have been (Jis- 
(p) Sands \. 2'horowgood, Hutdr. covered after the time when it could 

104. have been introduced into the origi- 

(1) Such a bill must be founded upon an afSdavit of the discovery 
of new matter, and cannot be filed without the special leave of the 
court. Neither can it be filed without making the deposit, or giving 
the security required upon a bill of review. Wilkinson v. Parish, 3- 
Paige's C. R. 653. 

(2) Wiser v. Blachly, 2 J. C. R. 488; Lawrence v. Cornell, 4 J. 
C. R. 542. 



136 FRAME AND END OF THE 

enrolled may be altered upon a rehearing, without 

the assistance of a bill of review, if there is suffi- 
cient matter to reverse it appearing upon 

[*91] the former proceedings(r), *the investiga- 
tion of the decree must be brought on by a 

petition of rehearing(5) : and the office of the sup- 

nal cause. Ord v. Noel, 6 Matld. ^/iV/orcZ, 12 Ves. 456, unless upon a 
127, and see Barringtons. O'Brien, petition of rehearing, or upon a bill 
2 Ball & B. 140. of review, or bill in the nature of a 
(r) The rehearing, which is thus bill of review, 4 Madd. 32 ; Grey v. 
far alluded to, not being sought in re- Dickenson, 4 Madd. 464 ; Bracken- 
sped to any new matter, is obtained bury v. Brackenbury, 2 Jac. & W. 
upon certificate of counsel, 18 Ves. 391; TFiVh's v. ParWrison, 3 Swanst. 
325, by a petition merely, which 233; Brookjield v. Bradley, 2 Sim. 
states the case as brought before the & Stu. 64, according as the decree 
court when the decree was made, has or has not been signed and en- 
Wood V. Griffiths, 1 Meriv. 35, and rolled ; and as it is sought to have 
the grounds on which the rehearing the case reheard as originally brought 
is prayed, 1 Sch. & Lefr. 398(1). before the court, or accompanied with 
And here it may not be improper to new matter. See Text, 
notice, that the court will not, without (s) Taylor \. Sharp, 3 P. Wms. 
consent, 3 Swanst. 234, vary a de- 371. 2 Ves. 598. Gore v. Purdon, 
cree after it has been passed and en- 1 Sch. and Lefr. 234. 2 Jac. and W. 
tered, except as to mere clerical er- 393. It must be remarked that where 
rors. Lane v. Hobbs, 12 Ves. 458 ; there is new matter, a petition to re- 
Weston V. Haggerston, Coop. R. hear the original cause must be pre- 
\2\; Hawker \. Duncombe, 2 M&M. sented, and be brought before the 
R. 391 ; 3 Swanst. 234 ; Tomlins v. court at the same time as the supple- 
Palk, 1 Russ. R. 475(2), or, matters mental bill, in the nature of a bill of 
of course, 7 Ves. 293 ; Pickard v. review. Moore v. Moore, Dick. 66. 
Mattheson, 7 Ves. 293 ; Newhouse v. 17 Ves. 178(3). 



(1) A petitioQ of rehearing will be dismissed, if it suggests, as the 
ground of rehearing, facts not alleged in the pleadings. JVevinson v. 
Stables, 4 Russ. 210. See 112, 113, 114, and \15, Rules of J\r. Y. 
Chancery. A rehearing is not a matter of course, except in the cases 
provided for by rule. Travis v. Waters, 1 J. C. R. 48 ; Easthurn v. 
Kirk, 2 lb. 311 ; Land v. Wickham, 1 Paige's C. R. 256 ; Wiser v. 
Blachly, supra. 

(2) Where a decree has been entered by consent, there can be no 
rehearing. Monell v. Lawrence, 12 J. R. 521. Nor will it be granted 
after a decree to account, exceptions to a master's report taken and dis- 
allowed, acquiescence of the party therein, and a final report made up 
and confirmed. Ridg. Lap. Sf Scho. 602. 

(3) See the form of such a petition, 2 Harr. Chan. (ed. 1790) 32. 
The petition, it seems, should be presented previously to filing the sup- 
plemental bill. 



SEVERAL KINDS OF BILLS. 137 

plemental bill, in nature of a bill of review, is to 
supply the defect which occasioned the decree 
upon the former bil](/)( 1). It is necessary to obtain 
the leave of the court to bring a supplemental bill 
of this nature(^i), and the same affidavit is required 
for this purpose as is necessary to obtain leave to 
bring a bill of review on discovery of new matter 
(x). The bill in its frame nearly resembles a bill of 
review, except that instead of praying that the for- 
mer decree may be reviewed and reversed, it prays 
that the cause may be heard with respect to the 
new matter made the subject of the supplemental 
bill, at the same time that it is reheard 
upon the original bill, *and that the plain- [*92] 
tiff may have such relief as the nature of 
the case made by the supplemental bill requires(t/). 
3. If a decree is made against a person who had 
no interest at all in the matter in dispute, or had 
not such an interest as was sufficient to render the 
decree against him binding upon some person 
claiming the same or a similar interest(2^), relief 
may be obtained against error in the decree by a 
bill in the nature of a bill of review(a). Thus, if 
a decree is made against a tenant for life only, a 

(t) Standish v. Radley, 2 Atk. bills of this kind, see Ord v. Noel, 6 

177. Madd. 127. Bingham v. Dawson, 1 

(w) Order, 17 Oct. 1741. Ord in Jac. R. 243. 

Cha. in ed. Bea. 366. 2 Atk. 139, n. (y) See 17 Ves. 177, 178. 

3 Atk. 811. 2 Ves. 597, 598. {z) Brownv. Fermuden, 1 Ca. in 

Bridge v. Johnson, 17 Dec. 1737. Cha. 272. 

(x) As to the general principles (a) See 17 Ves. 178. 
adopted by the court in relation to 



(1) See the form of such a bill, rri/Zw, 376. Such a bill cannot 
be filed, where a party could have filed an ordinary supplemental bill, 
but waits doiug so until after a decree. Pendleton v. Fay, 3 Paige't 
C. R. 204. 

18 



138 FRAME AND END OF THE 

remainder-man in tail, or in fee, cannot defeat the 
proceedings against the tenant for Hfe but by a 
bill showing the error in the decree, the incompe- 
tency in the tenant for life to sustain the suit, and 
the accruer of his own interest, and thereupon 
praying that the proceedings in the original cause 
may be reviewed, and for that purpose that the 
other party may appear to and answer this new bill, 
and the rights of the parties may be properly as- 
certained. (1). A bill of this nature, as it does not 
seek to alter a decree made against the plaintiff 
himself, or against any person under whom he 
claims, may be filed without the leave of the 
court(6)(2) 

4. If a decree has been obtained by fraud, it may 

be impeached by original bill(c) without the 
[*93] leave of *the court(<Z) ; the fraud used in 

obtaining the decree being the principal 
])oint in issue, and necessary to be established by 

(6) Osborne v. Usher, 6 Bro. P. on petition ; but this was probably 

C 20. Toml. ed. meant to extend only to the case of a 

(c) 1 P.Wms. 736. Loyd v. Man- decree not signed and enrolled, and 

tell, 2 P. Wms. 73. 3 P. Wms. 111. where the fact of fraud could not be 

Wichalte v. Short, 3 Bro. P: C. 558. controverted. See Mussel v. Mor- 

Toxq\. tA., And see Kennedy y. Daly, gan, 3 Bro. C. C. 74. 2 Sch. and 

\ Sch. and Lefr. 355, and Giffard Lefr. 574.* 

T. Hort, 1 Sch. and Lefr. 386(3). (d) 3 Atk. 811. 1 Ves. 120. Ca. 

In 3 P. Wms. Ill, it is said that a Temp. Talbot, 201. 
decree in such case may be set aside 



(1) And it would seem, where a bill by a vendor of land, seeking a 
specific performance of the contract, is dismissed on account of a de- 
fect in the title, and he can afterwards make title, that he may come in 
again by an original bill iu the nature of a bill of review. Hepburn 
T. Dunlop, 1 Wheat, 179. 195. 

(2) See the form of such a bill, Willis, 378. 

(3) Davoue v. Fanning, 4 J. C, R. 199; Murray v. Murray, 5 
lb. 60 ; Williams v. Fowler, 2 J. J. Marshall's R. 405 ; Edmonson 
V. Motly'a heirs, 4 lb. 97. 



SEVERAL KINDS OF BILLS. 199 

proof before the propriety of the decree can be in- 
vestigated(l). And where a decree has been so 
obtained the court will restore the parties to their 
former situation, whatever their rights may be(c). 
Beside cases of direct fraud in obtaining a decree, 
it seems to have been considered, that where a de- 
cree has been made against a trustee, the cestui 
que trust not being before the court, and the 
trust not discovered, or against a person who has 
made some conveyance or encumbrance not disco- 
vered, or where a decree has been made in favor 
of or against an heir, when the ancestor has in fact 
disposed by will of the subject-matter of the suit, 
the concealment of the trust, or subsequent con- 
veyance, or encumbrance, or will, in these several 
cases, ought to be treated as a fraud(y). It has 
been also said that where an improper decree has 
been made against an infant, without actual 
fraud, it ought to be impeached *by origi- [*94] 
nal bill(o-). When a decree has been made 
by consent, and the consent has been fraudulently 
obtained, the party grieved can only be relieved by 
original bill(/^). 

A bill to set aside a decree for fraud must state 
the decree, and the proceedings which led to it, 
with the circumstances of fraud on which it is im- 

(e) Birne v. Hartpole, 5 Bro. P. Guppy, 1 Turn. R. 178. 

C. 197. Toml. ed. ; and see Pouell (/) See Style v Martin, 1 Ca. in 

V. Martin, 1 Jac. & W. 292. And Cha. 150. Earl of Carlisle v. Goble, 

it may be remarked, that where the 3 Cha. Rep. 94. 

enrolment of the decree by the one (g) 1 P. Wms. 737. 2 Ves. 232. 

party is a fraud or surprise upon the (/i) Ambl. 229(2). 
other, it vrill be vacated. Stevens v. 



(1) See the form of such a bill, Willis, 381. 

(2) And see Monell v. Lawrence, on appeal, 12 J. R. 521. 



140 FRAME AND END OF THE 

peached. The prayer must necessarily be varied 
according to the nature of the fraud used, and the 
extent of its operation in obtaining an improper de- 
cision of the court. 

5. The operation of a decree signed and enrol- 
led has been suspended on special circumstances, 
or avoided by matter subsequent to the decree, 
upon a new bill for that purpose. Thus, during 
the troubles after the death of Charles the First, 
upon a decree for a foreclosure in case of non-pay- 
ment of principal, [interest and costs, due on a 
mortgage, the mortgagor at the time of payment 
being forced to leave the kingdom to avoid the 
consequences of his engagements with the royal 
party, and having requested the mortgagee to sell 
the estate to the best advantage and pay himself, 
which the mortgagee appeared to have acquiesced 
in; the court, upon a new bill, enlarged the time 
for performance of the decree, upon the ground of 
the inevitable necessity which prevented the mort- 
gagor from complying wtth the strict terms of it, 
and also made a new decree on the ground of the 
matter subsequent to the former decree(e). 
[*95] *6. Sometimes, from the neglect of par- 
ties, or some other cause, it becomes impos- 
sible to carry a decree into execution without the 

(t) Cocker v. Bevis, 1 Ca. in Cha. chancery for relief, and perhaps in- 

61. See also Venables v. Foyle, I duccd the court to go far in extending 

Ca. in Cha. 3; and Whorewood v. relief; but there were many cases of 

Whorewood, 1 Ca. in Cha. 250; extreme hardship in which it was 

Wakelin v. Walthal, 2 Ca. in Cha. deemed impossible, consistently with 

8. The embarrassments occasioned established principles, to give relief; 

by the civil war in the reign of and all cases determined soon after the 

Charles I. and the state of affairs af- Restoration, upon circumstances con- 

ter his death, before the restoration of ncctcd with the prior disturbed state 

Charles II. occasioned many extraor- of the country, ought to be considered 

^nary applications to the court of with much caution. 



SEVERAL KINDS OF BILLS. 141 

further decree of the court(A:). This happens, ge- 
nerally, in cases where parties having neglected to 
proceed upon the decree, their rights under it be- 
come so embarrassed by a variety of subsequent 
events, that it is necessary to have the decree of 
the court to settle and ascertain them. Sometimes 
such a bill is exhibited by a person w^ho was not a 
party, nor claims under any party to the original 
decree, but claims in a similar interest, or is un- 
able to obtain the determination of his own rights 
till the decree is carried into execution(Z). Or it 
may be brought by or against a person claiming 
as assignee of a party to the decree(m). The court 
in these cases in general only enforces, and does 
not vary, the decree ; but on circumstances 
it has sometimes considered *the directions, [*96] 
and varied them in case of mistake(w) ; and 
it has even on circumstances refused to enforce 
the decree(<>) ; though in other cases the court, 
and the House of Lords, upon an appeal, seem to 
have considered that the law of the decree ought 
not to be examined on a bill to carry it into execu- 

(k) 2 Chanc. Rep. 128. 2 Vern. opened that decree. — In the case of 

409. Sit John Warden v. Gerard, in Ch. 

(l) See peculiar case of Rylands v. 1718, the interests of an infant party 

hatouche, 2 Bligh, P. C. 566. being affected by the decree, the 

(m) Organ v. Gardiner, 1 Ca. in court refused to carry it into execution 

Cha. 231 ; Lord Carteret v. Paschal, upon a bill for that purpose, and made 

3 P. Wms. 197; S. C. on appeal, 2 a decree according to the rights of the 

Bro. P. C. 10; Tonil. ed. Binks v. parties. See Lechmere v. Brasier, 

jBinArs, rep. 2 Bligh, P. C. 593, note. 2 Jac. & W. 287. But in Shephard 

(n) See, for example, Hamilton v. t. Titley, 2 Atk. 348, on a bill to 

Houghton, 2 Bligh, P. C. 1C4; and foreclose a mortgage, after a bill to 

see Sel. Ca. in Cha. 13. redeem, on which a decree had been 

(6) Att. Gen. v. Day, 1 Ves. 218. made, the bill of foreclosure insisting 

1 Ves. 245 ; Johnson v. Northey, on an encumbrance not noticed in 

Prec. in Ch. 134. S. C. 2 Vern. 407. the former cause, the latter was on 

In the last case the Lord Keeper hearing ordered to stand over, that 

(1700) seemed to think that a bill by the question might be brought on by 

creditors to carry into execution a de- rehearing of the former cause, or by 

cree in favor of their debtor, had bill of review. 



142 FRAME AND END OF THE 

tion(^). Such a bill may also be brought to 
carry into execution the judgment of an inferior 
court of equity(<y) if the jurisdiction of that court 
is not equal to the purpose; as in the case of a 
decree in Wales, which the defendant avoided by 
flying into England(r) : but in this case the court 
thought itself entitled to examine the 
[*97] ^justice of the decision, though affirmed in 
the House of Lords(5). 

A bill for this purpose is, generally, partly an 
original bill, and partly a bill in the nature of an 
original bill, though not strictly original(<); and 
sometimes it is likewise a bill of revivor, or a sup- 
plemental bill, or both. The frame of the bill is 
varied accordingly. 

7. It has been already mentioned(2^), that when 
the interest of a party dying is transmitted to an- 
other in such a manner that the transmission may 
be litigated in this court, as in the case of a devise, 
the suit cannot be revived by or against the person 
to whom the interest is so transmitted ; but that 
such person, if he succeeds to the interest of a plain- 
tiff', is entitled to the benefit of the former suit ; 
and if he succeeds to the interest of a defendant, 
the plaintiff" is entitled to the benefit of the former 
suit against him; and that this benefit is to be ob- 
tained by an original bill in nature of a bill of re- 

(p) 2 Vcs. 232, Smythe v. Clay, 1 Wales, seems to have been a ceise of 

Bro. P. C. 453. Tonil. ed. See also Halford v. Morgan. 

Minshull V. Lord Mohun, 2 Vern. (s) See Douglas, 6. 

672, and S. C. on appeal,. 6 Bro. P. (t) In the case o? Pott v. Gallini, 

C. 32. Toml. cd. a decree in a former suit was, in ef- 

{q\ 1 Roll. Ab. 373. feet, extended upon an original bill. 

(r) Morgan v. , 1 Atk. 408. 1 Sim. and Stu. 206. 

Tne case referred to of a decree in (u) See above, p. 71. 



SEVERAL KINDS OF BILLS. 143 

vivor(l). A bill for this purpose must state the 
original bill, the proceedings upon it, the abate- 
ment, and the manner in which the interest of the 
party dead has been transmitted ; and it must 
charge the validity of the transmission, and state 
the rights which have accrued by it. The bill is 
said to be original merely for want of that privity ( 
of title between the party to the former 
and the party to the *latter bill, though [*98] 
claiming the same interest, as would have 
permitted the continuance of the suit by a bill of 
revivor. Therefore, when the validity of the alleged 
transmission of interest is established, the party 
to the new bill shall be equally bound by or have 
advantage of the proceedings on the original bill, 
as if there had been such a privity between him and 
the party to the original bill claiming the same in- 
terest(a:) ; and the suit is considered as pending 
from the filing of the original bill, so as to save the 
statute of limitations, to have the advantage of 
compelling the defendant to answer before an an- 
swer can be compelled to a cross-bill, and every 
other advantage which would have attended the 
institution of the suit by the original bill if it could 
have been continued by bill of revivor merely(t/). 
8. It has been also mentioned(2;), that if the in- 

(x) Clare v. Wordell, 2 Verii. 548. 134. S. C. 2 Vern. 407. 1 Sim. & 

1 Eq. Ca. Ab. 83. Minshullw. Lord Stu. 495. 

Mohun, 3 Vern. 672. Mordaunt v. (y) Child v. Frederick, 1 P. 

MinshuU, 6 Bro. P. C. 32. Toral. ed. Wms. 266. 

Johnson v. Northey, Prec. in Cha. (z) See above p. 72. 



(1) See the form of such a bill, Willis, 394. And for the practice 
m the court of chancery of the State of New-York, see note 1 , at page 
77, ante. 



144 FRAME AND END OF THE 

terest of a plaintiff or defendant, suing or defend- 
ing in his own right, wholly determines, and the 
same property becomes vested in another person 
not claiming under him, the suit cannot be con- 
tinued by a bill of revivor, and its defects cannot 
be supplied by a supplemental bill ; but that by an 
original bill in the nature of a supplemental bill 

the benefit of the former proceedings may 
[*99] be obtained(«). A bill for this *purpose 

must state the original bill, the proceedings 
upon it, the event which has determined the in- 
terest of the party by or against whom the former 
bill was exhibited, and the manner in which the 
property has vested in the person become entitled. 
It must then show the ground upon which the court 
ought to grant the benefit of the former suit to or 
against the person so become entitled; and pray 
the decree of the court adapted to the case of the 
plaintiff in the new bill(&)(l). This bill, though 
partaking of the nature of a supplemental bill, is not 
an addition to the original bill, but another origi- 
nal bill, which in its consequences may draw to it- 
self the advantage of the proceedings on the former 
bill(c). 

IV. Informations(<Z) in every respect follow the 
nature of bills, except in their style. When they 
concern only the rights of the crown, or of those 
whose rights the crown takes under its particular 
protection, they are exhibited in the name of the 

(a) See Houlditch v. Marquis of Tc) See 9 Ves. 55. above, p. 73. 
Donegall, 1 Sim. and Stu. 491. (d) See above, p. 22. 

(ft)6Bro. P. C. 24. Toml.ed. 

(1) See the form of such a bill, Willis, 396. 



SEVERAL KINDS OF BILLS. 145 

king's attorney or solicitor general as the inform- 
ant ; and, as before observed, in the latter case al- 
ways, and in the former, sometimes, a relator is 
named, who in reality sustains and directs the 
suit. It may happen that this person has an inte- 
rest in the matter in dispute, and sustains the 
character of plaintiff as well as of relator ; and in 
this case the pleading is styled an information and 
bill. An information concerning the rights of the 
queen is exhibited also in the name of her 
attorney general. *The proceedings upon [* 100] 
an information can only abate by the death, 
or determination of interest, of the defendant. If 
there are several relators, the death of any of them, 
while there survives one, will not in any degree 
affect the suit ; but if all the relators die, or if 
there is but one, and that relator dies, the court 
will not permit any further proceeding till an or- 
der has been obtained for liberty to insert the 
name of a new relator, and such name is inserted 
accordingly(c), otherwise there would be no per- 
son liable to pay the costs(y*) of the suit in case 
the information should be deemed improper, or for 
any other reason should be dismissed. 

The difference in form between an information 
and a bill consists merely in offering the subject 
matter as the information of the officer in whose 
name it is exhibited, at the relation of the person 
who suggests the suit in those cases where a re- 
lator is named, and in stating the acts of the de- 

(c) Alt. Gen. v. Powel, Dick. 355. Sim. and Stu. 40 ; and see Anon: 

And tlie application must be made Sel. Ca. in Clia. 69. Alt. Gen. v. 

by tlie attorney general, or with his Fellows., 1 Jac. and W. 254. 
consent. Alt. Gen. v. Plumptrce, 5 (/) 1 Ves. 72. Alt. Gen. v. Mid^ 

Madd. 452. Wellbeloved v. Jones, 1 dleton, 2 Ves. 327. 

19 



146 



FRAME AND END, &C. 



fendant to be injurious to the crown, or to those 
whose rights the crown thus endeavors to protect* 
When the pleading is at the same time an infor- 
mation and bill, it is a compound of the forms used 

for each when separately exhibited(g'). 
[*101] *In this investigation of the frame and 

end of the several kinds of bills, the mat- 
ters requisite to the sufficiency of each kind have 
been generally considered ; but they will in some 
degree be more particularly noticed in the follow- 
ing chapter, in treating of the defence which may 
be made to the several kinds of bills, and conse- 
quently of the advantages which may be taken of 
their insufficiency both in form and substance. 



(g-) It may here be observed, with 
respect to informations on behalf of 
public charities, that the practice of 
this court has been to control the 
governors or other directors of them, 
in those cases only in which they 
have had the disposition of its re- 
venues ; and that this limited authori- 
ty has been exerted under its general 
jurisdiction in relation to trusts ; al- 
though it has gone beyond the ordi- 
nary cases on that subject by regu- 
lating the exercise of their discretion. 
2 Ves. 89. 2 Ves. 328. Att. Gen. 
V. Foundling Hospital, 2 "Ves. Jr. 42. 
S. C. 4 Bro. C. C. 165. Att. Gen. 
V. Dixie, 13 Ves. 519. Att. Gen. v. 
Earl of Clarendon, 17 Ves 491. 3 
Ves. and Bea. 154. Att. Gen. v. 
Brown, 1 Swanst. 265. Att. Gen. v. 
Mayor of Bristol,^ M?iM.Z\d. S. C. 
2 Jac. and W. 294. Foley v. Wontner, 
2 Jac. and. W. 245. Att. Gen. v. 
Buller, 1 Jac. R. 407. Att. Gen. v. 
Heelis, 2 Sim. and Stu. 67. Att. 
Gen. V. Mayor of Stamford, reported 
2 Swanst. 591. Att. Gen.\. Vivian, 



1 Russ. R. 226. It has already been 
observed in the text, p. 18, that this 
court is empowered by the 52 Geo. 3, 
c. 101, to interfere in such cases as 
relate only to the plain breach of 
trusts created for charitable purposes, 
on what is technically termed a peti- 
tion in a summary way. As to 
which, see also ex parte Berkhamp- 
stead School, 2 Ves. and Bea. 134; 
Ex parte Bees, 3 Ves. and Bea. 10. 
Ex parte Brown, Coop. R. 295. Ex 
parte Skinner, 2 Meriv. 453. S. C. 
1 Wils. R. 14. Ex parte Green- 
house, 1 Swanst. 60. S. C. 1 Wils. 
R. 18. In re Slewings Charity, 
3 Meriv. 707. Att. Gen. v. Green, 
I Jac. and W. 303. In re Bedford, 
Charity, 2 Swanst. 470. In the 
matter of St. IVcnns Charity, 2 Sim. 
and Stu. 66 ; and see 2 Swanst. 518. 
525. And, it may here be added, 
that it is also authorized to decide in 
certain other cases relating to the 
property of charities, upon a petition, 
bythe59Geo. 3, c. 91. 



CHAPTER THE SECOND. 
OF THE DEFENCE TO BILLS 



SECTION I. 
By whom a Suit may be defended. 

In treating of the defence which may be made to 
a bill it will be proper to consider : I. By whom a 
suit may be defended. II. The nature of the va- 
rious modes of defence; under which head will be 
considered, 1, demurrers, 2, pleas, 3, answers and 
disclaimers, or any two or more of them jointly, 
each referring to a separate and distinct part of 
the bill. 

When the interest of the crown, or of those 
whose rights are under its particular protection, 
is concerned in the defence of a suit, the king's 
attorney general, or during the vacancy of that 
office the solicitor general, becomes a necessary 
party to support that interest(«) ; but it has been 
already observed, that a suit in the court of chan- 
cery is not the proper remedy where the crown is 
in possession, or any title vested in it is sought to 
be divested, or affected(&), or its rights are the 
immediate and sole object of the suit. The 

(a) Balch v. Wastall, 1 P. Wms. (6) See above, p; 31. 
445. 2Sch. &Lefr.C17. 



148 BY WHOM A SUIT 

[* 103] queen's attorney or ^solicitor seems to be 
the party necessary to defend her rights(c). 

All other bodies politic and corporate, and per- 
sons who do not partake of the prerogative of the 
crown, and have no claim to its particular protec- 
tion, defend a suit either by themselves, or under 
the protection of or jointly with others(l). Bodies 
politic and corporate, and persons of full age, not 
being married women, or idiots or lunatics, de- 
fend a suit by themselves ; but infants, idiots and 
lunatics, are incapable by themselves of defending 
as they are of instituting a suit ; and married wo- 
men can only defend jointly with their husbands, 
except under particular circumstances, unless a 
special order is obtained to authorize or compel 
their defending separately. 

Infants institute a suit by their next friend ; but 
to defend a suit the court appoints them guar- 
dians who are usually their nearest relations, not 

(c) See 2 Roll, Ab. 213. But a Writ of annuity against Joan, queen 
queen dowager has been sued as a dowager of Henry IV. 
common person. 9 Hen. VI. 53. 



(1) It is a usual practice to make sucb of the individual members of 
a corporation parties as are supposed to know any thing of the matters 
inquired after in the bill. This is allowed by statute and sanctioned 
by cases. 2 R. S. J^ew-York, 464, J 43 ; lb. 465, ^ 52 ; Anonymous, 
1 Fern. 117; Brumley v. West Chester Manuf. Co. 1 J. C. R. 366 ; 
Fulton Bank v. Sharon Canal Co. 1 Paige's C. R. 218; Dummer v. 
Corp. of Chippenham, 14 Fes. Jr. 245. Indeed, it has been said, a 
discovery cannot be compelled in a suit against a corporation, except 
through the medium of their agents and officers, by making them parties 
defendants. And where there is an injunction, it would be desirable 
that an officer or other person acquainted with the facts in the answer 
should swear to it : for the injunction cannot be dissolved upon the 
general "answer of the corporation where the seal alone is sworn to, 
Fulton Bank v. Sharon Canal Co. supra. 



MAY BE DEFENDED. 149 

concerned in point of interest in the matter in 
question(rf). If a person is by age, or infirmities, 
reduced to a second infancy, he may also defend 
by guardian(c). 

(d) Offley V. Jenney, 3 Ch. Rep. 357. Williams v'. Wynn, 10 Ves. 

51. On the subject of appointing 159. i^iVZ v. Smi7/i, 1 Madd. R.290. 

guardians ad litem for infant defend- Lushington v. Seicell, 6 Madd. 28.(1) 

ants, see Brassington v. Brassing- sed. vid. Tappen v. Norman, 11 

ton, 3 Anstr. 369. Eylcs v. Le Grus, Ves. 563. 

9 Ves. 12. Jongsma v. PJiel, 9 Ves. (e) Leving v. Caverly, Free, in 

(1)3 Bibb. 525 ; Bedell's heirs v. Lewis's heirs, 4 J. J. Marshall's 
R. 567 ; 2 Revised Statutes, JV. F. 186, J 122, 123, 124 ; lb. 317, } 4 ; 
Rules JV. Y. Chancery, 143. 1 15, 146, 147, 148, 149 ; Knickerbocker 
V. De Freest, 2 Paige's C. R. 304. As to partition cases, see 2 jR. 
S. 329, { 80, 81 ; Larkin v. J\lann, 2 Paige's C. R. 27 ; Wilkinson, 
V. Parish, 3 lb. 653. 

It is error to enter a decree against infant defendants, without assign- 
ing them a guardian ad litem. Curtis' s heirs v. Ellis, 3 A. K. 
Marshall's R. 77 ; Iron's executors v. Crist, lb. 143 ; Jones v. Lacey, -s^ 
3 J. J. Marshall, 544; Roberts V.Stanton, 2 Munf. 129. And although J 
the infancy does not appear in the original proceedings, yet if it be alleged / 
ID a petition for a rehearing (the decree being interlocutory) a guar- \ 
dian ad litem must be appointed. Roberts v. Stanton, supra. "-' 

It is presumed that, if an infant defendant were to appear and de- 
fend by solicitor, a complainant might compel an appearance and de- 
fence by guardian. This has been done at common law. Hindmarsh 
V. Chandler, 7 Taunt. 488. Infants cannot be made parties to a bill ^ 
for the sake of discovery merely, as they do not answer on their oaths. 
Leggett V. Sellon, 3 Paige's C. R, 84. No decree or order of revival 
can be made against an infant, by default, under the provisions of the 
New-York Revised Statutes. But if the infant neglects to appear and 
procure the appointment of a guardian, the same steps for the appoint- 
ment of a guardian ad litem must be taken as in other cases where the 

infant neglects to appear. Wilkinson v. Parish, 3 Paige's C. R. 653. 
In a controversy between the superseded and substituted guardian as 

to the effects of the ward, such ward must be a party. Campbell v, 

Williams, 3 Monroe's R. 125. 
It has never been the course and practice of the court to appoint a 

guardian to an infant feme covert. Matter of Whittaker, 4 J. C. R- 

379, and cases there cited ; Roach v. Garvan, 1 Fc*. Sen. 157. 

A suit does not abate by the infant's coming of age. No change is 

necessary in the proceedings. Cur. Can. 464 ; Cary, 22. 



150 BY WHOM A SUIT 

Idiots and lunatics defend by their com- 
[*104] mittees(y*), *who are, by order of the 
court, appointed guardians for that pur- 
pose as a matter of course(^) ; and if it happens 
that an idiot or lunatic has no committee(A), or 
the committee has an interest opposite to that of 
the person whose property is intrusted to his 
care(^), an order may be obtained for appointing 
another person as guardian for the purpose of de- 
fending a suit(A:). So if a person who is in the 
condition of an idiot or a lunatic, though not 
found such by inquisition, is made a defendant, the 
court upon information of his incapacity will di- 
rect a guardian to be appointed(Z) (3). 

Chan. 229. 1 Eq. Ca. Ab. 281. (h) Howlett v. Wilbraham, 5 

Wilson V. Grace, 14 Ves. 172. And Madd. 423. 

see Att. Gen. v. Waddington, 1 (i) Snell v. Hyat, Dick. 287. See 

Madd. R. 321.(1) Lloyd v. , Dick. 460. 

{ f) \ Vern. 106. Lyon v. Mercer, (Jc) Howlett v. Wilbraham, 5 

1 Sim. & Stu. 356. Madd. 423.(2) 

{g) Westcomb v. Westcomb, Dick. (I) Anon. 3 P. Wms. Ill, n. See 

233. Wilson v. Grace, 14 Ves. 172. 

(1) And see Howlett v. Wilbraham, 5 Ves. Jr. 423; where, on a 
motion of a complainant, a lunatic defendant had a guardian appointed 
to put ill an answer. 

(2) And see Carter v. Carter, 1 Paige's C. R. 463. 

(3) It is an almost universal rule, that the lunatic need not be made 
a party defendant with his committee. The suit should be against the 
latter as committee. Executors of Brasher v. Van Cortlandt, 2 J. C. 
M. 242 ; Teal v. Woodworth, 3 Paige's C. R. 470 ; and see in the 
matter nf Heller, lb. 199. Although a person has been found a lu- 
natic abroad, yet, upon his leaving his country for another, a commis- 
sion would have to issue within the latter country, before he could be 
brought before the court as in ordinary cases. Matter of Housloun, 1 
Russ. C. R. 3\2. 

A committee must be appointed for a non-resident lunatic, to enable 
such committee to obtain the control of property within the jurisdiction 
of the court. Matter of Pettit, 2 Paige's C. R. 174 ; Ex parte Baker, 
Coop. C. C. 205. 

It is doubtful how far the insolvency of a committee will be a suffi" 



MAY BE DEFENDED. 151 

A married woman, though she cannot by her- 
self institute a suit, and if her husband is not join- 
ed with her must seek the protection of some other 
person as her next friend, may yet, by leave of 
the court, defend a suit separately from her hus- 
band without the protection of another(m). Thus, 
if she claims, in opposition to any claims of her 
husband, or if she lives separate from him(n), or 
disapproves the defence he wishes her to make(o), 
she may obtain an order for liberty to de- 
fend the suit separately(p), *and her an-[*105] 

(m) 4 Vin. Ab. 147. Baron & (p) Poiccl v. Prentice, Ca. t. 

Feme, 1. a. 20. 1 Sim. & Stu. 1G3.(1) Hardw. 258. Wybourn v. Blunt, 

(n) Portman v. Pophavi, Tothill, Dick. 155. A separate answer put 

75. Jackson v. Hauoorth, 1 Sim. & in by a married woman without an 

Stu. 161. order for the purpose may be sup- 

(o) Ex parte Halsam, 2 Atk. 50. pressed as irregularly filed. But if 

2 Eq. Ca. Ab. 66. filed with her approbation, and ac- 

cient cause for removing him as a party and actor. Ex parte JSlildmay, 

3 Ves. Jr. 2; Ex parte Proctor, \ Swanst, 532 ; Ex parte Livingtton, 
1 J. C. R. 434. 

It would seem, that where there is a joint appointment of two as com- 
mittee, and one dies, afresh appointment must take place. Ca. Temp. 
Talbot, 143 ; but see Ex parte Picard, 2V.SfB.\27; Ex parte Lyne, 
Forrest, \43. 

Where the property is small, a party in the situation of a lunatic has 
been allowed to answer by guardian, without the appointment of a com- 
mittee. Ex parte Picard, supra ; Anonymous, cited in [B.] 3 P. 
Wms. Ill ; Eyrev. Wake, A Ves. Jr. 795; Wilson y. Grace, 14 Ves. 
Jr. 171. 

Where, after a decree in a suit, in which a lunatic and his committee 
are defendants and the committee dies and a new one is appointed, a 
motion should be made for an order that the latter be earned as the 
committee in all the future proceedings in the cause. Lyon v. Mercer, 
1 Sim. Ss Stu. 356. 

The committee of a lunatic, who has voluntarily accepted the appoint- 
meDt, cannot be discharged without showing some valid excuse for resign- 
ing his trust. In the matter of Lytle, 3 Paige's C. R. 251. 

(1) Barry v. Cane, 3 Jlad. R. 472; Ormsby v. White, 1 Hogan's 
C. R. 254. 



152 BY WHOM A SUIT, &/C. 

swer may be read against her(^). If a hus- 
band is plaintiff in a suit, and makes his wife a 
defendant, he treats her as a feme sole, and she 
may answer separately without an order of the 
court for the purpose(r). The wife of an exile, or 
of one who has abjured the realm, may defend as 
she may sue alone(5) ; and if a husband is out of 
the jurisdiction of the court(/), though not an ex- 
ile, or if he cannot be found(u), his wife may be 
compelled to answer separately.(l) If a married 
woman obstinately refuses to join in defence of her 
husband, she may also be compelled to make a 
separate defence ; and for that purpose an order 
may be obtained that process may issue against 
her separately(x). Except under such circum- 
stances a married woman can only defend jointly 
with her husband(2/). 

cepted by the plaintiff, it will not be 442. Bunyan v. Mortimer, 6 Madd. 

deemed irregular upon objection 278. 

taken by her merely for want of the (u') Bell v. Hyde, Free, in Ch. 328. 

order for leave to file it separately ; (x) Pain v. -, 1 Ca. in Cha. 

and she will be bound by an offer 296. 1 Sim. & Stu. 163. 

contained in it. See Duke ofChiii- (y) As to the answer of a married 

dos V. Talbot, 2 P. Wms. 371. S. woman, see further, Plomer v. Plo- 

C. Sel. Ca. in Cha. 24. mer, 1 Ch. Rep. 68. Wrotteslcy v. 

(9) Travers v. Buckly. 1 Ves. Bendish. 3 P. Wms. 235. Penne 

383. ' V. Peacock, Ca. t. Talb.41. Murrict 

(r) Ex parte Strangeways, 3 v. Lyon, Bunbury, 175. Ex parte 

Atk. 478. Brooks v. Brooks, Prec. Halsam, 2 Atk. 50. Traverse v. 

in Chan. 24. Ainslie v. Medlicott, Buckley, 1 Wils. R. 264. Barry v. 

13 Ves. 266. Cane, 3 Madd. 472. Jackson v. Ha- 

{s) See page 24, 19 Co. Litt. 132. worth, 1 Sim. & Stu. 161. Garey 

b. 133. a. and 2 Vern. 105. v. Whittingham, I Sim. & Stu. 163. 

(<) Carlton v. M'Enzie, 10 Ves. Bushell v. Bushell, 1 Sim. & Stu. 

164. 



(1) An order must be obtained for a wife to answer separately before 
she can do so. A liusband may obtain this order where he cannot in- 
fluence his wife to answer; and where the husband is abroad and not 
amenable to the jurisdiction, the complainant may obtain the order. 
And it is doubtful whether, in eithercase, the husband can answer sepa- 
rately before there is an order that the wife shall put in a separate an- 



DEFENCE. 15^ 

CHAPTER II 

SECTION II. 
PART I. 

Of the Nature of the various Modes of Defence 
to a l^ill ; afid first of Demurrers. 

It has been mentioned(«) that the person 
against whom a bill is exhibited, being called up- 
on to answer the complaint made against him, may 
defend himself, 1, By demurrer, by which he de- 

(a) Page 13, 14, 15, 16. 



8wer. The practice, however, seems to be to receive his answer. And 
yet, if it were not a case in which an order might be obtained for the 
wife to answer separately, she must answer jointly ; and then his answerj 
if on file, must be taken off, in order that she may join in it. Garey 
V. Whiltingham, supra. The wife becomes a substantial party to a 
suit, only from the time of the order that she should answer separately. 
Jackson v. Haworih, supra. 

It is not a ground for the wife's answering alone that her husband ia 
in prison. .Anonymous, 2 Ves. Jr. 332 ; and see Duke of Chandos v. 
Talbot, 2 P. Wms. 371. 

If a female defendant marry and neglect or refuse to disclose the 
fact, so that her husband might be regularly brought before the court, /\ 
the cause may proceed without regard to the marriage. Hartley r» 
O" Flaherty, 1 Mnl. 5 ; and see Thorold v. Hay, Dick. 410. 

If a married woman be of unsound mind and deserted by her husband, 
and she is a defendant m a suit, an order must be obtained, which is of 
course for her putting in her answer separate from her husband, hating 
bad a guardian appointed for her. 1 Grant's Pr- 354. 

Where a woman was abandoned by her husband, and could get no 
person to be her guardian, she was allowed to file her answer without 
one. Glover V. Youngs Bunb. 167. 

Where a feme sole answers, and afterwards, penJcnie /t(e, marries, 
the plaintiff may proceed against her without reviving, and the husband 
shall be bound by the answer she made while sole. 1 Harr. Pr. 296, 
(6th edit.) ; and see Cary, 81. 

20 



154 DEFENCE, 

mands the judgment of the court whether he shall 
be compelled to answer the bill or not(&). 2, By 
plea, whereby he shows some cause why the suit 
should be dismissed, delayed, or barred(c). 3, By 
answer, which, controverting the case stated by 
the plaintiff, confesses and avoids, or traverses and 
denies, the several parts of the bill(<Z) ; or, admit- 
ting the case made by the bill, submits to the 
judgment of the court upon it, or upon a new case 
made by the answer, or both : or by disclaimer, 
which at once terminates the suit, the defendant 
disclaiming all right in the matter sought by the 
bill(c). And all or any of these modes of defence 
may be joined, provided each relates to a separate 
and distinct part of the bill(l). 

It has also been observed that the 
[* 107] grounds on * which defence may be made 
to a bill, either by answer, or by disputing 
the right of the plaintiff to compel the answer 
which the bill requires, are various both in their 
nature and in their effect. Some of them, though 
a complete defence as to any relief, are not so as 
to a discovery ; and when there is no ground for 
disputing the right of the plaintiff to the relief 
prayed, or if the bill seeks only a discovery, yet if 
there is any impropriety in requiring the disco- 

Pract. Reg. 1G2. Wy. ed. (d) 2 West. Symb. Chan 194 

Ibid. 324. Wy. ed. Pract. Reg. 11. Wy. cd 

(e) Pract. Reg. 175. Wy. ed. 



S 



(1) See a neat synopsis of the different modes of defence in equity 
opposite page 319, ia Lube on Pleading. 

A defendant cannot plea and demur, or answer and demur efther to 
the whole or part of the bill. Clark \. Phelps, 6 J. C.R. 214; 
Beattchamp v. Gibbs, 1 Bibb, 481. 



DEMURRERS. 155 

tery, or if it can answer no purpose for which a 
court of equity ought to compel it, the improprie- 
ty of compelHng the discovery, or the immateri- 
ality of the discovery if made, may be used as a 
ground to protect the defendant from making it. 
Different grounds of defence therefore may be ap- 
plicable to different parts of a bill ; and every 
species of bill requiring its own peculiar ground 
to support it, and its own peculiar form to give it 
effect, a deficiency in either of these points is a 
ground of defence to it. 

Whenever any ground of defence is apparent 
on the bill itself, either from matter contained in 
it, or from defect in its frame, or in the case made 
by it, the proper mode of defence is by demur- 
rer(l). A demurrer is an allegation of a defen- 
dant, which, admitting the matters of fact(y) al- 
leged by the bill to be true, shows that as they are 
therein set forth, they are insufficient for the 
plaintiff to proceed upon or to oblige the 
defendant to answer(jg') ; or that for some 
*reason apparent on the face of the bill(/i), [*108] 
or because of the omission of some matter 

(_f ) A demurrer confesses matter Cuthbert v. Creasy, & Madd. 189(2). 

of fact only, and not matter of law. (g-) Prac. Reg. 162. Wy. ed(3). 

Lord Raym. 18. 1 Ves. Jr. 78. 289. 2 {h) Ord. in Cha. 26. ed. Bea. 
Ves. and B. 95. 3 Meriv. 503. 



(1) Harris v. Thomas., 1 Hen. Sf Munf. 18 ; Alderson v. Biggars, 
4 76. 472. 

(2) Pryor v. Adams, Call's il. 391. 

(3) A demurrer to a bill must be founded on some dry point of law, 
which goes to the absolute denial of the relief sought ; and not on cir- 
cumstances in which a minute variation may incline the court either to 
grant, or modify, or refuse the application. Verplank v. Caines, 1 J. 
C. R. 37. 



J56 DEMURRERS. 

which ought to be contained therein, or for want 
of some circumstance which ought to be atten- 
dant thereon, the defendant ought not to be com- 
pelled to answer. It therefore demands the judg- 
ment of the court whether the defendant shall be 
compelled to make answer to the plaintiff's bill, 
or to some certain part thereof(i) (1). The causes 
of demurrer are merely upon matter in the bill(fe), 
or upon the omission(Z) of matter which ought to 
be therein or attendant thereon; and not upon 
any foreign matter alleged by the defendant(/w). 
The principal ends of a demurrer are, to avoid a 
discovery which may be prejudicial to the de- 
fendant, to cover a defective title, or to prevent 

(») 3 P. Wms. 80. Prac. Reg. 162. Q) 3 P. Wms. 395. 
Wy. ed. See 2 Sch. and Left. 206. (m) Ord. in Cha. 26. ed. Bea. 

{k) 2 Ves. 247. 



(1) A demurrer is the negation of the rule of law laid down in the 
first proposition of the bill, namely, that the right to discovery and re- 
lief results from the relation assumed ; or, rather, since the causes of 
demurrer must be assigned, {Beames Ord. Chan. 77. 173.) it is a nega- 
tive proposition, that from the complainant's own showing, he has not 
the right to discovery and relief, either, because the relation stated by 
him is not adequate, or, because there are some of the objections to 
answering apparent on the face of the bill. Thus, an issue in law is 
joined, not in the first instance on the complainant's right, but on the 
validity of the causes assigned ; and if any of these causes be allowed 
on argument, the right is necessarily gone. The statement of the causes 
of demurrer, therefore, will be nothing more than a reference to the 
bill and an enumeration of the objections appearing on the face of it, 
on which the defendant means to rely. Hence arises two questions : — 
Whether the objection, as stated, really exists .'' and whether such ob- 
jection is valid .'' The first is, generally, a question of the adequate- 
ness of the relation stated by the bill ; the latter is a question on the 
rule of law : and the defendant should, in assigning the causes of de- 
murrer, clearly point out the nature of the objection which he takei, 
ADJ how it appears on the adverse pleading. Lube, 338, 339, 340. 



k^ 



DEMURRERS. 157 

unnecessary expense. If no one of these ends is 
obtained, there is httle use in a demurrer(l). For, 
in general, if a demurrer would hold to a bill, the 
court, though the defendant answers, will not 
grant rehef upon hearing the cause. There have 
been, however, cases in which the court has given 
rehef upon hearing, though a demurrer to the re- 
lief would probably have been allowed(ri). But 
the cases are rare. 

*Billshave been already considered under [*109] 
three general heads ; 1, original bills ; 2, bills 
not original ; and, 3, bills in the nature of original bills. 
The several kinds of bills ranged under the second 
and third heads being consequences of bills treated 
of under the first head, the defence which may be 
made to original bills in its variety comprehends 
the several defences which may be made to every 

(n) 3 P. Wms. 150. 12 Mod. 171. confessed, a decree would then be 

(2). It seems that the court, upon made. See 2 Ves. Jr. 97. Brook v. 

the argument of a demurrer, decides Hewitt, 3 Ves. 253. 6 Ves. 686. 7 

upon the facts as stated in the bill, Ves. 245. 2 Sch. and Lef. 638. 6 

whether if the cause were to proceed Madd. 95(3). 
to a hearing, and they were proved or 

(1) Therefore, a bill praying for a receiver is not, on that account, 
demurrable, as the appointment of one rests in the sound discretion of 
the court. Verplank v. Caines, 1 J. C. R. 57. 

(2) And see Ludlow v. Simond, on appeal, 2 C. C. E. 1. 

(3) In Underhill v. Vaii CortlanJt, 2 J. C. R, 339, an objection was 
made at the hearing, after answer, that the remedy was at law. The 
court said — " At any rate, by answering in chief, instead of demurring, 
" the defendants submitted the cause to the cognizance of this court, 
" and they come too late, at the hearing on the merits, to raise the ob- 
" jection. It would be an abuse of justice, if the defendants were to 
" be permitted to protract a litigation to this extent, and with the ex- 
" pense that has attended this suit, and then, at the final hearing, inter- 
" pose this preliminary objection." And see Grandin v. Leroy, 2 
Paige's C. R. 509 ; V. S. v. Sturges, 1 Paint's C. C. R. 526 ; ancj 
Hawley v. Cramer, 4 Cowen, 717. 



158 DEMURRERS. 

Other kind of bill, except such as arise from the pe- 
culiar form and object of each kind. In treating 
therefore of demurrers it will be convenient first 
to consider demurrers to original bills, under which 
head the nature of demurrers in general, and the 
principal grounds of demurrer to every kind of 
bill, will be necessarily noticed ; the distinct causes 
of demurrer peculiar to the several other kinds of 
bills will be then mentioned ; and in the third place 
will be considered the frame of demurrers in gene- 
ral, and the manner in which their validity is de- 
termined. 

In treating of original bills they have been divided 
into bills praying relief, and bills not praying relief; 
and it has been mentioned that both require a dis- 
covery from the party against whom the bill is ex- 
hibited. Demurrers to original bills may therefore 
be considered under two heads : first, demurrers to 
relief, which frequently include a demurrer to dis- 
covery ; and secondly, demurrers to discovery only, 
which sometimes consequentially affect the relief. 
Under these heads will necessarily be considered 
the causes of demurrer, as well to bills which 
seek a discovery only as to such as hkewise pray 

relief 
[*110] *From what has been observed in a pre- 
ceding page, it may be collected that the 
principal grounds of objection to the relief sought 
by an original bill, which can appear on the bill it- 
self, and may therefore be taken advantage of by 
demurrer, are these(o). I. That the subject of 

(o) It has been said that a defend- very small sum ; but it is most usual 
ant may demur to a bill if it appears to apply to the court that the bill 
upon the face of it to be brought for a may be dismissed. Anon. Mosely, 



DEMURRERS. l5tJ 

the suit is not within the jurisdiction of a court of 
equity : II. Tliat some other court of equity has the 
proper jurisdiction : III. That the plaintiff' is not 
entitled to sue by reason of some personal disabili- 
ty : IV. That he has no interest in the subject, or 
no title to institute a suit concerning it : V. That 
he has no right to call on the defendant concern- 
ing the subject of the suit : VI. That the defendant 
has not that interest in the subject which can 
make him liable to the claims of the plaintiff: 
VII. That for some reason founded on the substance 
of the case the plaintiff is not entitled to the relief 
he prays. To these may be added, VIII. The defi- 
ciency of the bill to answer the purpose of com- 
plete justice : and IX. The impropriety of con- 
founding distinct subjects in the same bill, or of 
unnecessarily multiplying suits. When the disco- 

47. 356. Anon. Bunbury, 17. Owens v. Smith, Comyn, 715. Brate r. 
Taylor, 2 Atk. 253(1). 



(1) And see 2 R. S. 173 ; Mnore v. Lyttle, 4 J. C. R. 183 ; Fuller- 
ton V. Jackson, 5 76. 276 ; Douw v. Sheldon, 2 Paige's C. R. 303 ; 
Vredenhurgh v. Johnson, 1 Hopk. 112 ; Mitchell v. Tighe, lb. 119 ; 
Hamilton v. Johnson, Vern. tSr Scriv. 394. 

It is said, that the value of the matter in demand which determines 
the jurisdiction of the court, is to be ascertained by the claim made by 
the complainant in his bill, and not by the finding of the court. Skin- 
ner v. Bailey, 7 Day's R. 496 ; Judd v. Bushnell, lb. 205. A justice's 
judgment, where the amount is ^100 and upwards, is as well entitled 
to the aid of a court of equity as the judgment of a court of record. 
Bailey v. Burton, 8 Wendell's R. 339. Several jndgment-creditors, 
the joint amount of whose judgments is ^100 or upwards, may unite iD 
a bill for discovery and to remove impediments at law created by the 
fraud of their common debtor, lb. A bill of discovery to aid a suit 
at law, although the sum in controversy is under ^100, will be sus- 
tained in the court of chancery of the State of New-York. Goldev 
V. Becker, 1 Edwards' V. C. R. 211. 



160 DEMURRERS. 

very sought by a bill can only be assistant to the 
relief prayed, a ground of demurrer to the relief 
will also extend to the discovery ; but if the disco- 
very may have a further purpose, the plaintiff may 
be entitled to it though he has no title ta 
[*111] "^relief In considering, therefore, these se- 
veral grounds of demurrer to relief, such 
as may, and such as cannot, extend to discovery 
likewise, will be distinguished. 

I. The general objects of the jurisdiction of a 
court of equity have been noticed in a former page, 
(p) ; and from thence it may be collected, that the 
jurisdiction, when it assumes a power of decision, 
is to be excercised, 1, where the principles of law, 
by which the ordinary courts are guided, give a 
right, but the powers of those courts are not suffi- 
cient to afford a complete remedy, or their modes 
of proceeding are inadequate to the purpose ; 2, 
where the courts of ordinary jurisdiction are made 
instruments of injustice ; 3, where the principles of 
law by which the ordinary courts are guided give 
no right, but upon the principles of universal jus-^ 
tice the interference of the judicial power is neces- 
sary to prevent a wrong, and the positive law is 
silent : and it may also be collected that courts of 
equity, without deciding upon the rights of the 
parties, administer to the ends of justice by assuming 
a jurisdiction ; 4, to remove impediments to the fair 
decision of a question in other courts ; 5, to pro- 
vide for the safety of property in dispute pending 
a litigation, and to preserve property in danger of 
being dissipated or destroyed by those to whose 

( p) Page 4, 5. 



DEMURRERS. 



I6i 



care it is by law intrusted, or by persons having 
immediate but partial interests ; 6, to restrain the 
assertion of doubtful rights in a manner 
productive *of irreparable damage ; 7, to [*112] 
prevent injury to a third person by the 
doubtful title of others ; and 8, to put a bound to 
vexatious and oppressive litigation, and to prevent ,\ 
multiplicity of suits : and further, that courts of 
equity, without pronouncing any judgment which 
may affect the rights of parties, extend their juris- 
diction ; 9, to compel a discovery, or obtain evi- 
dence which may assist the decision of other 
courts; and 10, to preserve testimony when in 
danger of being lost before the matter to which it 
relates can be made the subject of judicial investi- 
gation. 

1. Cases frequently occur in which the princi* 
p\es(q) by which the ordinary courts are guided in 
their administration of justice give a right, but 
from accident or fraud, or defect in their mode of 
proceeding, those courts can afford no re- 
medy, or cannot give the *most complete [*113] 
remedy ; and sometimes the effect of a re- 
medy attempted to be given by a court of ordinary 

{q) The existence of courts of the proceedings of the ordinary courts 

equity in England distinct from the have not admitted of the application, 

courts of ordinary jurisdiction, has And from time to time the courts of 

suggested an idea that the ordinary common law have also been induced 

courts, and especially the courts of to admit, as grounds of their decision, 

common law, have not in their admi- rules established in the courts of equi- 

nistration of justice any recourse to ty, which they had before rejected as 

such principles of decision as are clashing with established rules of the 

merely rules of equity. But in fact common law ; and for some purposes 

those principles have been as con- they have also noticed principles of 

stantly applied by the ordinary decision established in the courts of 

courts as by the courts of equity, ex- equity, which the forms of proceeding 

cept where they have clashed with in the courts of common law have not 

established rules of the common law, enabled them directly to enforce, 
and where the forms observed in 

21 



162 DEMURRERS. 

jurisdiction is defeated by fraud or accident. In 
such cases courts of equity will interpose to give 
those remedies which the ordinary courts would 
give if their powers were equal to the purpose, or 
their mode of administering justice could reach the 
evil ; and also to enforce remedies attempted to be 
given by those courts when their effect is so 
defeated. 

Thus where an instrument on which a title is 
founded, as a bond, is lost, a court of equity will 
interfere to supply the defect occasioned by the 
accident, and will give the same remedy which a 
court of common law would have given if the ac- 
cident had not happened(r) (1). If an instru- 
ment has been destroyed, or is fraudulently sup- 
pressed, or withheld from the party claiming un- 
der it, courts of equity will also give relief (5) (2); 
as they will generally lend their aid whenever by 
fraud or accident a person is prevented from ef- 
fectually asserting in the courts of ordinary juris- 

(r) 1 Ca. in Cha. 11 ; 1 Eq. Ca. 109; Eyton v. Eyton, 2 Vern. 380; 

Ab. 92; 1 Atk. 287; Anon. 2 Atk. Sanson v. Ramsey, 2 Vern. 561; 

61; Anon. 3 Atk. 17. 1 Ves. 344; 5 Dalson ▼. Coats-worth, 1 P. Wms. 

Yes. 238; 7 Ves. 19; East India 731; Cowper \. Earl Coicper, 2 P. 

Company v. Boddam, 9 Ves. 464 ; Wms. 720 ; Atkins v. Farr, 1 Atk. 

Seagrave v. Seagrave, 13 Ves. 439 ; 287 ; Tucker v. Phipps, 3 Atk. 35&-. 

Smith \. Bickncll,ZYes.&L'B.b\,n. 1 Ves. 392; Saltern v. Melhuish, 

Stokoe V. Robson, 3 Yes. &.B. 51. Amb. 249; Bowles v. Stewart, 1 

(s) See Lord Hunsdon's c&se, Hob. Sch. & Lefr. 209. 

(1) See the form of a bill for relief where a bond is lost, Willis, 13, 
A bill will lie bj' the last endorsee of a lost bill of exchange to recover 
the amount from the acceptor ; and prior endorsees need not be made 
parties to the suit. Macartney v. Graham, 2 Sim. 28 ; and see Davies 
\.Dodd,A Price, 176. 

(2) See the form of a bill where an instrument has been fraudufently 
vithheld from the party claiming it. Willis, 27. 



DEMURRERS. 163 

diction rights founded on principles acknowledged 
by those courts. 

In some instances courts of law have 
acted on the *supposed destruction or sup- [*114] 
pression of an instrument where formerly 
those courts conceived they could not act for 
want of the instrument, especially in the particu- 
lar mode of proceeding. Thus in the supposed 
supperssion or destruction of a lease for lives un- 
der a power in a settlement, the supposed lessee 
was permitted to obtain on parol testimony a ver- 
dict and judgment in ejectment, upon a feigned 
demise, the form of the proceeding not requiring 
the lease in question to be in any manner stated in 
the pleadings, so that it could not appear upon the 
record under what title the recovery was had, or 
what specific lands were in the supposed lease, 
what were the lives for which it was granted, 
what the rent reserved, or what covenants bound 
cither party ; or whether the lease was or was not 
according to the powers under which it was al- 
leged to have been made. The consequence ne- 
cessarily was a suit in equity to have all those 
facts ascertained, and to restrain the execution of 
the judgment in ejectment in the mean time. 

In restraining waste by persons having limited 
interests in property, the courts of equity have 
generally proceeded on the ground of the common 
law rights of the parties, and the difficulty of ob- 
taining immediate preservation of property from 
destruction or irreparable injury by the process of 



164 DEMURRERS. 

the common law(<) (1); but upon this sub- 
[*115] ject the jurisdiction has *been extended to 
cases in which the remedies provided in 
those courts could not be made to apply(«^). 

Where an act of parliament has expressly given 
a right, the courts of ordinary jurisdiction have 
been found incompetent to give, in all cases, a full 
and complete remedy, and the courts of equity have 
therefore interposed. Thus in the case of a person 
who had been discharged under an act for relief of 
insolvent debtors, by which his future effects were 
made liable to the demand of his creditors, but his 
person was protected ; the court of chancery, exer- 
cising its extraordinary jurisdiction, enforced a 
judgment of a court of common law against his ef- 
fects, which were so circumstanced as not to be 
liable to execution at the common law(a;)(4). 

(i) See Field v. Jackson, Dick, those where the injury is not acknoWr 

599; Davis v. JLeo, 6 Vcs. 784; ledged at law, which are cases of 

Smith V. Collyer, 8 Ves. 89. 9 Ves. equitable waste, see Chamberlyne v. 

356. 19 Ves. lbi{2). Dummer, 1 Bro. C. C. 166. S. C. 

(m) As to the instances where the Dick. 600 ; Marquis of Downshire 

title is legal, and the courts of law v. Sandys, 6 Ves. 107; Lord Tara- 

admit the existence of an injury, but worth v. Lord Ferrers, 6 Ves. 419; 

do not afford a remedy, see 2 Freem. Williams v. M'Namara, 8 Ves. 70 ; 

54. Perrot v. Perrot, 3 Atk. 94. 3 Burges v. Lamb, 16 Ves. 174 ; Day 

Atk. 210; Farrant v. Lovel, 3 Atk. v. Merry, 16 Ves. 375 ; Marchioness 

723. 3 Atk. 755, 756 ; Mollineux v. of Ormonde v. Kynersley, 5 Madd. 

Powell, 3 P. Wms. 268, n. 3 Bro. 369 ; Lushington v. Boldero, 6 

C. C. 544 ; Onslow v. , 16 Ves. Madd. 149 ; Cojln v. Cojin, 1 Jac. 

163 ; Pratt v. Brett, 2 Madd. R. 62 ; R. 70(3). 

Brydges v. Stephens, 6 Madd. 279; (.r) Edgell v. Haywood, 3 Atk. 

as to those where the title is equita- 352. See 1 Jac. and W. 371(5). 
ble, see 19 Ves. 151. 155; and as to 

(1) See the form of a bill to restrain waste bj persons having limited 
interests in property. Willis, 39 ; 1 Equity Draft. 458. (2d edit.) 

(2) Brashear v. Jlacey, 3 J. J. Marshall's R. 93. This bill is the 
only remedy which a complainant has, when he is entitled to a contin- 
gent interest which may never vest. lb. ; and see note (u) above. 

(3) See the cases on waste amplified in Jeremy's Eq. Jur. 327. 

(4) See the form of a bill. Willie, 45. 

(5) 2 R. S. 173; Williams v. Brown, 4 J. C. R. 687 ; Brinckem 



DEMURRERS. 165 

Where parties by contract have given a right, 
but have not provided a sufficient remedy, the 
courts of equity have also interfered. 
Thus w^here a rent was ^settled upon a [*116] 
woman by way of jointure, but she had no 
power of distress, or other remedy at law, the pay- 
ment, according to the intent of the conveyance, 
was decreed in eqmiy(y). So where parties, 
meaning to create a perfect title, have used an im- 
perfect instrument, as a feoffment without livery of 
seisin(2;)(l) ; a bargain and sale without enrol- 
ment(«) ; a surrender of a copyhold not presented 

{y) Plunket v. Brereton, 1 Ch. Wms. 279. Burgh v. Burgh, 

Rep. 5 ; and see Duke of Leeds v. Rep. t. Finch, 28. 

Poicell, 1 Vcs. 171. (a) 6 Ves. 745. 

(z) Burgh V. Francis, cited 1 P. 

hoff V. Brown, lb. 671 ; Hadden v. Spader, on appeal, 20 J. R. 554 
S. C. 5 J. C. R. 280 : MDermuU v. Strong, 4 J. C. 687 
Beck V. Burdett, 1 Paige's C. R. 305 : Candler v. Petlil, lb. 1 68 
Edmeston v. Lyde, lb. 637 ; Stillwell v. Van Eps, lb. 615 ; Eager v. 
Price, 2 lb. 334 ; U. S. v. Slurges, 1 Paine's C. C. R. 525 ; M'Elwain 
V. Willis, on appeal, 9 Wendells R. 548 ; Le Roy v. Rogers, 3 Paige's 
C. R. 234; Practice in Ohio Chancery, Acts of IHSl, vol 29, p. 84, 
{ 16. A judgment in a court of the United States is not sufficient to 
ground a bill for reaching the property of a debtor not subject to exe- 
cution. It stands upon no other ground than the judgments of courts of 
sister states. Tarbell v. Griggs, 3 Paige's C. R. 207. A creditor's 
bill cannot be filed until after the return day of the execution is gone 
by ; and its issuing and return must be set forth. Cassidy v. Meacham, 
3 Paige's C. R. 311. Creditors by judgment and decree may join in 
such a bill. Clarkson v. De Pcyster, lb. 320. An omission of the 
averments required in a creditor's bill by the 189th rule of the court of 
chancery of the State of New-York is good ground of demurrer, 
JU'Elwain v. Willis, lb. 505. 

Every species of property belonging to a debtor may be reached and 
applied to the satisfaction of his debts. Edmeston v. Lyde, lb. 637. 
The judgment is prima facie evidence against the debtor or merestranr 
gers. Garland v. Rives, 4 Randolph's R. 282. 

(1) See the form of a bill to remedy a defective deed, Willis, 55, 



166 DEMURRERS. 

according to the custom of the manor(&) ; courts 
of equity have considered the imperfect instrument 
as evidence of a contract for making a perfect in- 
strument, and have remedied the defect even 
against judgment-creditors(c) who had gained a 
hen on the land in question, though when the con- 
sideration has been inadequate, rehef has not been 
extended so far(^). Where the legislature has 
declared that an instrument wanting a particular 
form should be null and void to all intents and pur- 
poses, and it was manifestly the design of the legis- 
lature that those words should operate to the fullest 
extent, relief has been refused. Thus a bill of sale 
of a ship wanting a formality required by the re- 
gister-act was not made good in equity against as- 
signees of the vendor become bankrupt(c). 
[*117] ^Relief has also been given where a re- 
medy at law was originally provided, but 
by subsequent accident could not be enforced, as, 
where by confusion of boundaries of lands remedy 
by distress for rent was defeated(y*)(l). So if the 
remedy afforded by the ordinary courts is incomplete 
a court of equity will lend its aid to give a complete 
remcdy(^). Upon this ground a bill was admitted 
for recovery of an ancient silver altar claimed by 
the plaintiff as treasure-trove within his manor : for 

{b;^ Taylor V. Wheeler, 2 Yern.bGi. (/) 1 Ves. 172. See North v. 

(c) See 1 P. Wms. 279. - Earl and Countess of Strafford, 3 

(d) Finch v. Earl of Winchelsea, P. Wms. 148. Bouverie v. Prentice, 
1 P. Wms. 277. 283. 1 Bro. C. C. 200, and Duke of Leeds 

(e) Hibbert v. RoUeston, 3 Bro. C v. Corporation of New Radnor, 2 
C. 571. 6 Ves. 745. Speldt v. Bro. C. C. 338, S. C. ib. 518, and the 
Lechmcre, 13 Ves. 588. Thompson cases there cited. 

V. Leake, 1 Madd. R. 39. (g) See 9 Ves. 33. 

(1) See the form of a bill in such a case. Willis, 69. 



DEMURRERS. 167 

though he might have recovered at law the vahie 
in an action of trover, or the thing itself, if it could 
be found in an action of detinue, yet as the defend- 
ant might deface it, and thereby depreciate the 
value, it was determined that the defect of the law 
in that particular ought to be supplied in equity(7i). 
And where an estate was held by a horn, and a bill 
was brought by the owner of the estate to have the 
horn delivered to him, a demurrer was over- 
ruled(f). 

Upon the same principle(A:) the jurisdiction of 
the court is supported in a very common case of a 
bill for delivery of deeds or writings(/), sug- 
gesting that *they are in the custody or [*118] 
power of the defendant; though in early 
times it seems to have been considered that the 
jurisdiction did not extend to cases where an action 
of detinue would lie(m)(l). 

In the case of contracts or agreements this prin- 
ciple is carried to the extent. The principles by 
which the courts of common law direct their deci- 
sions on the subject acknowledge the mutual right 
of the contracting parties to specific performance 
of the agreements they have made ; but the mode 

(A) Duke of Somerset v. Cookson, 41. B. and Stat. 32 Hen. VIII. c. 36. 

3 P. Wms. 300 ; and see Fells v. s. 9 ; and see on this subject Brown 

Read, 3 Ves. 71. Lowther v. Lord y: Brown, Dick. 62. 1 Madd. R. 

Lowther, 13 Ves. 95. 192. Ctoxd v. Tyrrell, 3 Madd. 179: 

(i) Pusey\. Pusey, 1 Vern. 273 ; Knye v. Moore, 1 Sim. and Stu. 61. 

and see Earl of Macclesfield v. Da- Balch v. Symes, 1 Turn. 87. 
vis, 3 Ves. and Bea. 16. (m) 9 Edw. IV. 41 B. Sec also 

(k) See 2 Atk. 306. 39 Hen. VI. 26. Brook Prsr. 45.'; 

(i) The court of chancery has long which seems to have been in effect a 

exercised its extraordinary jurisdic- bill for discovery and account, 
tion in this case. See 9 Edw. IV. 



(1) See the form of a bill for the delivery of deeds unjustly detained, 
Willis, lb ; 1 Eq. Draft. 64. (2d edit.) 



168 DEMURRERS. 

of proceeding in those courts enables them only to 
attempt to compel performance by giving damages 
for non-performance. Here therefore the courts of 
equity interfere to give that remedy which the 
ordinary courts would give if their mode of admi- 
nistering justice would reach the evil, by decreeing 
according to the principles of the common law as 
well as of natural justice, specific performance of 
the agreement(w)(l). This however extends only 

to contracts of which a specific performance 
[* 119] is essential to *justice(o) ; for if damages 

for non-performance are all that justice re- 
quires, as in the case of a contract for stock in the 
public funds, a court of equity will not interfere(2?)* 
In other cases where compelling a specific act is 
the only complete remedy for an injury, and the 
ordinary courts can attempt to give this remedy 
only by giving damages, the courts of equity will 
interfere to give the specific remedy, especially if 

(n) 13 Ves. 76. 228. 2 Sch. and 151, n. (c) and 2 Sch. and Lefr. 347, 

Lefr. 556. 1 Jac. and W. 370. and Williams v. Stetcard, 3 Meriv. 

The courts of equity decree perform- 472. As to the propriety of extending 

ance of agreements in many cases the application of the doctrine of part 

where no action would lie at the com- performance, see 3 Ves. 712, 713. 6 

mon law for non-performance ; and Ves. 32. 37. 2 Sch. and Lefr. 5. 

on this head great complaints have (o) See 3 Bro. C. C. 543. 8 Ves. 

been made, the justice of which it is 163. 2 Sch. & Lefr. 347(2). 

beyond the purpose of this treatise to (p) Cud v. Butler, 1 P. Wms. 

consider. See 1 Fonbl. Treat, of Eq. 570. 10 Ves. 161. 13 Ves. 37. 



(1) See bills to compel the specific performance of an agreement, 
IVillis, 83 ; 1 Equity Draft. 9. i\,et seq. 

(2) Cathcart v. Robinson, 5 Peters, 264. In Hepburn v. Dunlap, 
\ Wheat. 179, it is said, that, generally speaking, a court of law is 
competent to afford an adequate remedy to either party for a breach of 
contract, from whatever cause it may have proceeded ; and that when- 
ever this is the case, a resort to a court of equity is improper. 



DEMURRERS. 



169 



the right has been estabhshed by the determination 
of the ordinary courts(g'). 

(g) It is difficult to reconcile all 3 Madd. 247; Hudson v. Bartram, 

the cases in which the courts of equi- 3 Madd. 440 ; Franklyn v. Tuton, 

ty have compelled the performance of 5 Madd. 4G9 ; Dawson v. Ellis, 1 

agreements, or refused to do so, with Jac. & W. 524; Baxter v. Conolly, 

each other ; and in some cases where 1 Jac. & W. 576 ; Martin v. Mit' 

performance has been decreed, it is cAeZZ,2 Jac. & W. 413 ; Beaumont \. 

difficult to reconcile the decisions Dukes, 1 Jac. R. 422 ; Gordon v. 

with the principles of equal justice. Smart, 1 Sim. & Stu. 66; Bryson 

The .cases and their varieties are nu- v. Whitehead, 1 Sim. & Stu. 74; 

merous, and have been ably collected Doloret v. Rothschild, 1 Sim. & Stu. 

in 1 Fonbl. Treat, of Equity. Of the 590; Llngen v. Simpson, 1 Sim. & 

later cases on the subject, see Mor- Stu. 600; Agar v. Macklew, Sim. 

phett V. Jones, 1 Swanst. 172. S. C. & Stu. 418 ; Hasker v. Sutton, 2 

1 Wils. Ch. R. 100 ; Garrard v. Sim. & Stu. 513 ; Lewin v. Guest, 

Grinling, 2 Swanst. R. 244. S. C. 1 1 Russ. R. 325; Atwood v. , 1 

Wils. Ch. R. 460 ; Walker x.Barnes, Russ. R. 353(1). 



(1) Fellows V. Lord Gwydyr, 1 Sim. 63 ; S. C. on appeal, 4 Russ. 
83; Williams \. Edwards, 2 Sim. 78; Wethered v. Wethered,lb. 183; 
Harwood v. Tooke, lb. 192; Dalby v. Pullen, 3 lb. 29 ; Chambers v. 
Waters, lb. 42 ; Andrew v. Andrew, lb. 390 ; Egerton v. Jones, lb. 
392; Cann v. Cann, lb. 447; Clarke v. Royle, lb. 499 ; Dakinv. 
Cope, 2 Russ. 170; Attwood v. Barham, lb. 186 ; Morris v. M'-Jftil, 
lb. 604; Robinson v. Pag-e, 3 76. 114; Stevens \. Guppy,lb. 171; 
Williams v. Shaw, lb. 178 ; CZarA: v. Faux, lb. 320 ; Bryant v. Rusk, 

4 /2ws5. 1 ; Page v. Broom, lb. 6 ; Zong v. Collier, lb- 269 ; Flight v. 
Bolland, lb. 298 ; Brough v. 0(/%, 1 Pmss. <^ Jtf. 55 ; Hodges v. 
Horsfall, lb. 116; Sco« v. Hanson, lb. 128; Watson v. Retd, lb. 
236; Hoggart v. Sco«, /6. 293; Palmer v. Scott, lb. 391 ; Stanley v. 
Robinson, lb. 527 ; Elworthy v. BiVcZ, 1 Tamlyn, 38; Beevor v. Simp- 
son, lb. 69 ; Brough v. Oddy, lb. 215 ; Phillips v. Thompson, 1 X C. 
JR. 134; Parkhurst v. Van Corttandt, lb. 273, on appeal, 14 ,/. iJ. 
15; Benedict v. Lynch, lb. 370 ; Tfew Broeck v. Livingston, lb. 357; 
Osgood V. Franklin, 2 lb. 1 ; Botsford v. Burr, lb. 405 ; Hatch v. 
Cobb, lb. 559 ; Minturn v. Seymour, 4 /i». 497; Kempshall v. Stone, 

5 /6. 193 ; iTzng v. Bardeau, 6 /i. 38 ; Si. Jo/in, v. Benedict, lb. Ill f 
Seymour v. Delancey, lb. 222 ; S. C. 3 Cowen's R. 445, 1 i/o^A:. 436 ; 
Champion v. Brown, 6 J". C. /?. 398 ; Waters v. Travis, on appeal, 9 J. R. 
450 ; Murray v. Gouverneur, 2 JT C. 438 ; Woodcock v. Bennet, 1 
Cowen's P. 71 1 ; Whitbeck v. Whitbeck, 9 76. 266 ; Pierce r. Mchols, 
1 Paige's C. R. 244 ; Squire v. Harder, lb. 494; Canajoharie «^ Pa- 
latine Church v. Leiber, 2 76. 43 ; Livingston v. Peru Iron Company, 
lb. 390 ; Vedder v. Evertson, 3 76. 281 ; Hepburn v. ./au/rf, 5 Crunch, 
262; Hepburn v. Dunlop, 1 Wheat. 179. 196; Morgan's heirs v. 

22 



170 DEMURRERS. 

In some cases, as in matters of account(r), 
partition of estates between tenants in 
common(5), and ^assignment of dower [*120] 

(r) See 2 Ves. 388. Corporation 570; Turner v. Morgan, 8 Vcs. 

qfCarlUle v. Wilson, 13 Ves. 276. 143. 17 Ves. 552. IVcs. &B. 555; 

1 Sch. & Lefr. 309(1). Miller v. Warmington, 1 Jac. & W. 

(«) See 2 Freem. 26. 2 Ves. Jr. 484(2). 



Morgan, 2 lb. 290 ; Colton v. Thompson, 2 lb. 336 ; Brashier r. 
Gratz, 6 lb. 541 ; PraK v. Carroll, 8 /6. 471 ; Pratl v. iaic, 9 i6. 
436 ; Thompson v. Todd, 1 Peters, C. C. R. 380 ; Calhcart v. 
Robinson, 5 Peters, 264 ; ^a«« v. Waddle, 6 Peters, 389 ; Sma//- 
it'ood V. Mercer, 1 Wath. 290 ; Fitzhugh v. Jonet, 6 Munf. 83 ; 
Sa.ler v. G/as*, i6. 212; G/a*e v. Dray tons, I Deaau, 109; fPt/- 
kinson v. Wilkinson, lb. 201 : /zart/ v. Executor of Izard, lb. 116; 
/Jwgg- V. £//i«, /6. 160; Clitherall v. Ogilvie, lb. 250; Colcock v. 
Bullcr, lb. 307 ; SmitA v. Brails/ord, lb. 360 ; Grimke v. Execu- 
tors of Grimke, lb. 366 ; Bu</er v. O'Hear, lb. 398 ; J^eufville 
V. Mitchell, lb. 480 ; Osborne v. Bremar, lb. 486 ; Wainwright r. 
Reid, lb. 573; Gircn* v. Colder, 2 lb. 190; Tel/air v. Telfair, 2 
/i. 271 ; Wightman v. Reside, 2 lb. 578 ; Ramsay v. Brads/ord, 2 
76.532: Sebben v. Trezevant, 3 76, 213; Brown v. Gilliland, 3 lb, 
539 ; Perkins v. Wright, 3 Hen SfM'Hen. 326 ; Campbell v. Digges, 
4 76. 12 ; Brickhane v. Gough, 4 lb. 17; Tubman v. Anderson, 4 76. 
357 ; Jenkins v. Hogg, 2 Cons. Rep. Sou. Carr. 821 ; JTAifc v. ^«. 
fcirjson, 2 Wash. 94; J[,ay v. Colslen, 1 77en. ^r Munf. 110 ; J^oofc t. 
i2o$£, 1 77en. <^ Munf. 310; Jones' devisees v. Roberts, 3 76.436; 
Stmmon* v. 77i7/, 4 76. 258 ; Z-eit!»* v. Madisons, I .Wutj/. 303 ; /ioi» w 
Hook's administrator, 4 76. 97 ; Johnson v. Ronald's administrator, 4 
76. 77 ; Graham v. Hendren, 5 76. 185 ; Graham v. CaW, 76. 396 ; 
Birchett v. Boiling, 6 76. 442 ; Zane's devisees v. Zane, 6 76. 406 ; 
Harvie v. Banks, 1 Randolph's R. 408 ; Ei;ans v. Kingsherry, 2 lb. 
120 ; Toionfcnd v. Hammond, 2 Hammond's 72. 18 ; Matter of Hunter, 
1 Edwards' V. C. i£. 1 ; Brush v. Vandenberg, lb. 21 ; Ochler v. 
Walker, 2 Harris Sf Gill, 323 ; Coa/e v. Barney, 1 Gi// ^ Johnson, 
824 ; Hamilton v. Jones, 3 76. 127. 

(1) Hawley v. Cramer, 4 J. C. iJ. 717. 

(2) Jeremy's Eq. Juris. 303. Equity Las concurrent power in par- 
tition. Farmers v. Respass, 5 Munroe, 564 ; Wiseley v. Findlay, 3 
Randolph, 36 1 ; 2 Revised Statutes JV. F. 329 to 332 ; Harwood r. 
Kirby, 1 Paige's C. R. 469 ; JenA^rw r. Fan Schaick, 3 76. 242^ 



DEMURRERS. 171 

(<)(2), a court of equity will entertain jurisdiction 
of a suit, though remedy might perhaps be had in 
the courts of common law(3). The ground upon 
which the courts of equity first interfered in these 
cases seems to have been the difficulty of proceed- 
ing to the full extent of justice in the courts of 
common law(i*). Thus though accounts may be 
taken before auditors in an action of account in 
the courts of common law, yet a court of equity 
by its mode of proceeding is enabled to investigate 
more effectually long and intricate accounts in an 
adverse way, and to compel payment of the ba- 
lance which ever way it turns. 

In the case of partition of an estate, if the titles 
of the parties are in any degree complicated, the 
difficulties which have occurred in proceeding at 
the common law have led to applications to courts 
of equity for partitions, which are effected by first 
ascertaining the rights of the several persons in- 
terested, and then issuing a commission to make 
the partition required, and upon return of the 

(t) See Curtis v. Curtis, 2 Bro. C. Perhaps in some of these cases the 
C. 620. 2 Ves. Jr. 129. 17 Ves. 552(1); jurisdiction was first assumed to prc- 
(u) 2 Ves. 388. 13 Ves. 279. vent multiplicity of suits. 



Chancery is the proper tribunal for (enanls in common of personal es- 
tate : for the}' can have no partition cf it at common law. Smith v. 
Smith, 4 Randolph,' s (Virginia) R. 95. Partition suits in the court 
of chancery of the State of New-York may be commenced by bill or 
partition. Larkin v. JUann, 2 Paige's C. R. 27. For a slight history 
of the English and New-York Statutes relating to partition, see Galla. 
tian V. Cunningham, 8 Cowen's R. 362. 

(1) Powell V. The Monson Sf Brimjield Manufac. Co. 3 Mason, 378. 

(2) See the form of a bill for dower. Willis, 110; 1 Equity Draft. 
212, (2d edit.) 

(3) Jiosts V. Lewis, 12 Price, 509. 



172 DEMURRERS. 

commission, and confirmation of that return by 
the court, the partition is finally completed by mu- 
tual conveyances of the allotments made to the 
several parties(:r). But if the infancy of any of 
the parties, or other circumstances, prevent such 
mutual conveyances, the decree can only 
[*121] extend to make the partition, *give posses- 
sion, and other enjoyment accordingly, un- 
til effectual conveyances can be made(2). If the 
defect arises from infancy, the infant must have a 
day to show cause against the decree after attain- 
ing twenty-one ; and if no cause should be shown, 
or cause shown should not be allowed, the decree 
may then be extended to compel mutual convey- 
ances(t/). If a contingent remainder, not capable 
of being barred or destroyed, should have been 
limited to a person not in being, the conveyance 
must be delayed until such person shall come in- 
to being, or until the contingency shall be deter- 
mined ; in either of which cases a supplemental 
bill will be necessary to carry the decree into exe- 

(x) See Cartwright v. Pultney, 2 (y) See Att. Gen. v. Hamilton, 1 
Atk. 380. 2 Sch. & Lefr. 372. 1 Jac. Madd. R. 214. 
& W. 493(1). 



(1) See Warfield v. Gambrill, 1 Gill S^ Johns. 503. If the title of 
the complainant in a particular suit is denied or it depends upon doubt- 
ful facts or questions of law, a court of equitj' will either dismiss the 
\)\\l or retain it until the right is decided at law. Stranghan v. Wright, 
4 Randolph's (Virginia) R. 493; S. P. in cases of dower. Wells r. 
Beall, 2 Gill Sf Johns. 468; Wilkin v. Wilkin, 1 J. C.R. Ill; 
Phelps V. Green, 3 lb. 302; Cox v. Smith, 4 lb. 211. A mere re- 
versioner without the concurrence of all the owners, cannot have a 
partition. Striker v. J\lott, 2 Paige's C. R. 387. 

(2) And see Sears v. Hyer, 1 Paige's C. R. 483. 



DEMURRERS. 173 

cution. An executory devise may occasion a 
similar embarrassment(z). 

In the case of dower the widow is often much 
embarrassed in proceeding upon a writ of dower 
at the common law, to discover the titles of her 
deceased husband to the estates out of which she 
claims her dower, to ascertain their comparative 
value, and obtain a fair assignment of a third. 
How far the courts of equity will assist a widow 
in the assignment of dower has been at different 
times a subject of much question ; but the result 
of various decisions seems to have settled, that 
where there is no ground of equity, as a purchase 
for valuable consideration(a), to prevent their in-r 
terference, the courts will proceed to set 
out dower; though if the title to *dower [*122] 
be disputed it must be first established at 
law(6). 

In all these cases the courts of equity will lend 
their aid; but they have generally considered 
themselves in so doing as proceeding merely on 
rights which may be asserted in a court of com- 
mon law, and therefore in the two cases of partir 

(z) See the case of Wills v. Slade, Black. And a like decision was 

6 Ves. 498(1). made in Meggott v. Meggott, in 

(a) WiUiams v. Lambc, 3 Bro. C. Cha. 15 Oct. J 743. But in Bead v. 

C. 264. Read, 15 Dec. 1744, the court re- 

(6) Curtis V. Curtis, 2Bto. C. C. tained the bill, and ordered the deeds 
620; Mundy\. Mundy, 2 Ves. Jr. to be produced, with liberty to the 
122. The last case was upon a de- plaintiff to bring a writ of dower, 
murrer, which after much considera- which was also done in Curtis v. 
lion was overruled. Lord Talbot Curtis, 15 May, 1778 ; finally re- 
had overruled a demurrer under sinii- ported in 2 Bro. C. C. 620. See also 
lar circumstances in Moor v. Blake, the case of D'Arcy v. Blake, 2 Sch. 
26 July, 1735, reported Ca. Temp. & Lefr. 387. 
Talb. 126, by the name of Moore & 

(1) Also, Striker v. Molt, 2 Paige's C. R. 387 ; Cheesman v, 
Thome, 1 Edwards' V. C. R. (at present, in M. S.) 13 May, 1833. 



174 DEMURRERS. 

tion, and assignment of dower, as no costs can be 
given in a court of common law upon a writ of 
partition or a writ of dower, no costs have been 
commonly given in a court of equity upon bills 
brought for the same purposes(6) ; and as arrears 
of dower can be recovered at common law only 
from demand, the same rule was adopted in the 
courts of equity, unless particular circumstances 
had occurred to warrant a departure from 
the course of the common law, founded *on [*123] 
the terms of the statute(c). The courts of 
equity having gone the length of assuming juris- 
diction in a variety of complicated cases of ac- 
count, of partition, and of assignment of dower, 
seem by degrees to have been considered as hav- 
ing on these subjects a concurrent jurisdiction(£Z) 
with the courts of common law in cases where no 
difficulty would have attended the proceeding in 
those courts. 

But except in these instances, and in some cases 
noticed in a subsequent page, the courts of equity 
will not assume jurisdiction where the powers ot 
the ordinary courts are sufficient for the purposes 

(b) Sec Lucas v. Chalcraft, Dick. Ves. 128, Worgan v. Ryder, 1 Ves. 

694. With respect to costs in cases & Bea. 20(2). 

of partition, see Calmady v. Cal- (c) In the case of Curtii v. Cur- 

mady, 2 Ves. Jr. 568. Agar v. tis, 2 Bro. C. C, 620, this rule was 

Fairfax, 17 Ves. 533. 1 Ves. <fe Bea. not observed. 

554 ;(1) and in cases of dower, see (d) 13 Ves. 279. 1 Sch. & Lefr. 

Lucas V. Calcraft, 1 Bro. C. C. 134, 309. 1 Ves. & Bea, 555. 
and S. C. 1 Ves. & Bea. 20, note. 2 



(1) 2 Revised Statutex of JV. Y. 327, { 62 ; 76. 329, } 79 ; Phelpt 
V, Green, 3 J. C. R. 302 ; Matter of Hcmiup, 3 Paige's C. R. 305. 

(2) Willis' Eq. PI. 110, note (a),- Tahele r. Tabele, 1 J, C. R. 
45 ; Hazen v. Thurhur, 4 lb. 604 ; Russell v. Austin, 1 Paige's C. R. 
192; Johnson v. Thomas, 2 lb. 377. 



DEMURRERS. 175 

of justice ; and therefore, in general, where a 
plaintiff can have as effectual and complete reme- 
dy in a court of law as in a court of equity, and 
that remedy is clear and certain(c), a demurrer, 
which is in truth a demurrer to the jurisdiction of 
the court, will hold(/) (2). 

(e) Parry V. Owen, 3 Atk. 740. of wills, whether of real or of person- 

Ghettoff V. Lond. Assur. Comp. 4 al estate, a demurrer to a will where- 

Bro. P. C. 436. Toml. ed. 1 Eq. by such a determination is sought, 

Ca. Ab. 131. Bensley v. Burdon, will hold. See Jones v. Jones, 3 

2 Sim. <& Stu. 519. Meriv. 161. Jonet v. Frost, 3 Madd, 

(/) As courts of equity disclaim 1. S. C. 1 Jac. R. 466(1). 
all right to decide upon the validity 

(1) Segrave v. Kirwan, 1 Beatly's R. 163. The duty of chancery 
is merely to construe the effect of a will. Jb, It is not competent for 
a court of chancery to set aside a will or codicil as to real estate on the 
ground of fraud or incompetency of the testator. The question should 
be determined in a court of law on an issue from chancery of devisavit 
vel non. It is otherwise as to a will of personal estate. Rogers v. 
Rogers, on appeal, 3 Wendell's R. 503 ; and see Colton v. Ross, 2 
Paige's C. R. 369, where it is said, that the court of chancery has no 
original jurisdiction to try the validity of wills of personal estate. The 
jurisdiction of the court existing only in case of an appeal from the 
decision of the surrogate. 

The court of chancery of the State of New -York is authorized to 
take proof of wills lost. 2 R. S. 67. 

(2) A demurrer to a bill for cause that the complainant has a legal 
remedy, will not be entertained, unless that remedy appears clear and 
not doubtful or difficult. O'Brien v. Irwin, Ridg. Lap. Sf Scho. 361 ; 
and see Reed v. Bank of J^ewburgh, 1 Paige, 215. 

Legal rights are to be asserted by legal means ; and in such cases, 
courts of equity never lend their aid when equity and justice do not 
imperiously demand it. Bosley v. M'Kinn, 7 Harris Sf Johns. R. 160. 
Although chancery will not reverse a judgment at law, nor decide over 
again a point decided by a court of law, yet, it will hear the same sub- 
ject of controversy, upon grounds not litigated in the court of law, 
either for want of legal testimony, (which, in chancery, may be supplied 
by the oath of the party,) or because it was a subject of equity jurisdic- 
tion and not admissible at law, or perhaps for other causes; and per- 
petually enjoin a judgment. And this too, although the grounds, at 
the time of an injunction, may be considered cognizable at law, if they 



176 DEMURRERS. 

If an accident is made a ground to give juris-* 
diction to the court in a matter otherwise clearly 
cognizable in a court of common law, as the loss 

were not so coDbidered wlieo the judgment was rendered and the bill 
brought. Dana v. JVelson, 1 Aiken's (Vermont) R. 252. After a 
cause has been fully heard and decided at law, there can be no relief in 
equity. Terrel v. Dick, 1 Call's (Virginia) iJ. 191 ; and see Moses v. 
Lewis, 12 Price's R. 502. Not even though the judge may have mis- 
apprehended the kw. Brickell v. Jones, 2 Hayward's (North Caro- 
lina) R. 357; Marine Ins. Co. oj" Alexandria v. Hodgson, 7 Cranch, 
332. 

It seems, that relief will be given against a mistake of the attorney 
in pleading a plea which does not cover the defence. J\PJ^eish v. 
Stewart, 7 Cowen's (New-York) R. 474. But, query this — see Gra- 
ham V. Stagg, 2 Paige's C. R. 321. 

A party who had a judgment against him at law, without having had 
notice of the proceeding which led to it, reimbursed upon his having 
been compelled to pay too much. Taylor v. Wood's executors, 2 
Hayw. 332. Excessive damages at law are no grounds, in an ordinary 
case, for relief in equity. Reed v. Clarke, 4 Monroe's (Kentucky) R. 
19. The neglecting a defence at law, gives the party no right in 
equity. Drewry v. Barnes, 3 Russ. 94 ; More v. Brtgley, 1 Breese's 
(Illinois) J?. 60 ; Beuugenon v. Turcotte, lb. 126; Hubbard v . Hob- 
son, lb. 147; Greenup v. Brown, Ih. 193; Lmtd v. Sergeant, \ Ed- 
wards' V. C. R. 164. 

Where a cause has been argued in a court of law, on a case settled 
and judgment rendered, chancery will not interfere to have the case 
amended and re-argued. Holmes v. Remsen, 7 J. C. R. 286. A judg- 
ment cannot be impeached, except for fraud or accident (unmixed with 
any fault or negligence in the complainant or his agent) ; nor can 
its consideration be inquired into. French v. Shotwell, 6 J. C. R. 
235 ; Marine Ins. Co. of Alexandria v. Hodgson, 7 Cranch, 332. 
It will never interfere with the judgment on the ground of irregularity. 
The record of the judgment and execution and title under them are a 
conclusive bar in equity. Shollenkirk v. Wheeler, 3 J. C. R. 275. 
S. P. De Reimer v. Cantillon, 4 lb. 85 ; Hawley v. Mancius, 7 lb. 174. 

A bill cannot be filed to recover the amount of a total loss on a 
policy of insurance on the ground that the policy had been assigned to 
the complainants by the assured, and that the assurers refused to pay. 
A demurrer would hold. Carter v. United Insurance Co. 1 J. C. R. 
463. 



DEMURRERS'. 177 

or want of an instrument on which the 
plaintiff's title is *foun(led, the court will [*124] 
not permit a bare suggestion in a bill to 
support its jurisdiction ; but requires a degree of 
proof of the truth of the circumstance on which it 
is sought to transfer the jurisdiction from a court 
of common law to a court of equity(o-), by an affi- 
davit of the plaintiff' annexed to and filed with the 
bill. Thus if a bill is brought to obtain the bene- 
fit of an instrument upon which an action at law 
would lie, alleging that it is lost, and that the 
plaintiff" therefore cannot have remedy at law, an 
affidavit of the loss must be annexed to the bill, or 
a demurrer will hold(/«). 

So, in the case of a bill for discovery of any in- 
strument, suggesting that it is in the custody or 
power of the defendant, and praying any relief 
which might be had at law if the instrument was 
in the hands of the plaintiff, an affidavit must be 
annexed to the bill that the instrument is not in 
his custody or power, and that he knows not 
where it is, unless it is in the hands of the defen- 

(g-) Whitchurch v. Golding, 2 P. 342; Hook v. Dorman, 1 Sim. & 
VVms. 541. 3 Atk. 132. Stu. 227(1). 

(A.) See Walmsley v. Child, 1 Ves. 

(1) See tlie form of such a demurrer, Willis, 431. And see, as to 
the principle, Livingston v. Livingston, 4 J. C. R. 294 ; and seeLaight 
\. Morgan, on appeal, 1 J. C. 429, S. C. 2 C. C. E. 344 ; Lynch v. 
Willard, 6 J. C. R. 342. 34G ; and, as to the sufficiency of such an 
affidavit, Le Roy v. Veeder, on appeal, 1 J, C. 417, 5'. C. 2 C. C. E. 
175. 

When a bill is filed for a discovery and also for relief, the bill being 
good for the former purpose, without affidavit, but not for the latter, it 
will be retained as for the sound part; and the defendant ought to 
answer the part which is good, and demur, if he thinks proper, to the 
other. Laight v. Morgan, 2 Caines' Ca. 344 ; S. C. 1 J. C. 429. 

23 



llfS DEMURRERS. 

dant(l). But if the relief sought extends merely 
to the dehvery of the instrument, or is otherwise 
such as can only be given in a court of equity, 
such an affidavit is not necessary(i). It is also 
unnecessary in the case of a bill for discovery of a 
cancelled instrument, and to have another deed 
executed(A;) ; for if the plaintiff had the cancelled 
instrument in his hands he could make 
[*125] *no use of it at law, and indeed the relief 
prayed is such as a court of equity only 
can give. 

A suggestion that the evidence of the plaintiff's 
demand is not in his power is essential to a bill 
under these circumstances ; and if it is defective in 
this point the defendant may by demurrer allege 
that there is no such charge in the bill(Z). 

Where a right of action at law was in a trustee, 
and the person beneficially entitled filed a bill for 
relief, suggesting a refusal by the trustee to suffer 
an action to be brought in his name, a demurrer 
has been allowed(?w) ; and if a mere suggestion to 
this effect would support a bill, the jurisdiction in 
many cases might improperly be transferred from 
a court of law to a court of equity. 

By demurring to a bill because the plaintiff may 
have remedy at law, the defendant will not be de- 

(i) Whitworth t. Golding, Mos. (l) 3 P. Wms. 395(2). 

192. Nels. Rep. 78. Anon. 3 Atk. {rn) Ghettoff v. Lond. Atsur. 

17. Comp. 4 Brown, P. C. 436. Toml. 

(A) King V. King, Mot. 192. ed. And see 1 Atk. 547(3). 



(1) Laighl \. Morgan, 1 C. C. E. 345 ; S. C I J. C. R. 9. 

(2) See the form of such a demurrer, Willis, 433. 

(3) See the form of such a demurrer, Willis, 434 ; and note (§■) 
there. 



DEMURRERS. 179 

barred of relief in equity upon another bill, if the 
plaintiff in the first bill should proceed at law and 
recover(n). 

This objection to a bill is not confined to cases 
cognizable in courts of common law. If any other 
court of ordinary jurisdiction, as an ecclesiastical 
court, court of admiralty, or court of prize, is com- 
petent to decide upon the subject, a demurrer will 
equally hold(l); except that the courts of equity 
have in the case of tithes, and in the disposition of 
the effects of persons dying testate or intes- 
tate, assumed *a concurrent jurisdiction [*126] 
with the ecclesiastical courts, as far as the 
jurisdiction of those courts extends ; and indeed the 
courts of equity in many of these cases can give 
more complete remedy than can be afforded in the 
ecclesiastical courts, and in some cases the only 
effectual remedy. 

Courts of equity will also lend their aid to en- 
force the judgments of courts of ordinary jurisdic- 
tion(2); and therefore a bill may be brought to 
obtain the execution or the benefit of an elegit(o), 
or a fieri facias(p), when defeated by a prior title, 
either fraudulent, or not extending to the whole 
interest of the debtor in the property upon which 

(n) Humphreys v. Humphreys, 3 Comp. 2 Atk. 107. Stileman v. Ash- 

P. Wms.395. dow7i, 2 Atk. 608. 

{o) Lewkner v. Freeman, Pr. in (p) Smithier v. LewitflVcTn, Z99. 

Ch. 105. Higgins y. York Build. Balch v. Wastall, 1 P. Wms. 445. 



(1) See the form of such a demurrer, Willis, 467; and note (a) 
there. 

(2) The court of chancery of the State of New-York may enforce 
contribution between owners of lands subject to judgment. 2 ReiHsed 
Statutes, 376, 



180 DEMURRERS. 

the judgment is proposed to be executed. In some 
cases, where courts of equity formerly lent their 
aid, the legislature has by express statute provided 
for the relief of creditors in the courts of common 
law; and consequently rendered the exertion of 
this jurisdiction in such cases unnecessary. In any 
case to procure relief in equity the creditor must 
show by his bill that he has proceeded at law to 
the extent necessary to give him a complete title. 
Thus in the cases alluded to of an elegit and fieri 
facias he must show that he has sued out the writs 
the execution of which is avoided, or the defendant 
may demur(^) ; but it is not necessary 
[*127] *for the plaintiff to procure returns to 
those writs(r). 
The judgments of the ecclesiastical courts giv- 
ing civil rights will receive the same aid from a 
court of equity as those of the courts of common 
law(3); and therefore where a person against 
whom there was a sentence in an ecclesiastical 
court at the suit of his wife for alimony, intended 
to avoid the execution of the sentence by leaving 
the kingdom, the court of chancery entertained a 

(5) (1) Angell V. Draper, 1 Vern. Kennardv. Moore, in Ch. June 23, 

398. Shirley v. Watts, 3 ^tk. 1756. 2 Eq. Ca. Ab. 251. King v. 

200(2). Marissal, 3 Atk. 192. S. C. ib. 200. 

(r) Manningham v. Ld. Bolin- But see Balch v. IVastaU, 1 P. Wms. 

broke, Elegit, Easter, 1777, in Chan. 445. 

(1) See the form of such a demurrer, Willis, AlO ; and also note (5) 
there, and notes to page 115, ante. 

(2) U. S. V. Sturges, 1 Paine" s C. C. R. 525 ; and see note to page 
115, ante. 

(3) A creditor bj decree in chancery, upon the return of his execu- 
tion unsatisfied, is entitled to the same relief against the equitable in- 
terests and property of his debtor as a creditor by a judgment at law. 
Clarkson r. De Peyster, 3 Paige's C. R. 320. 



DEMURRERS. 1^1 

bill for a writ of ne exeat regno, to restrain him 
from leaving the kingdom until he had given secu- 
rity to pay the maintenance decreed(5). 

2. Sometimes a party, by fraud, or accident, or 
otherwise, has an advantage in proceeding in a 
court of ordinary jurisdiction which must neces- 
sarily make that court an instrument of injustice; 
and it is therefore against conscience that he 
should use the advantage. In such cases, to pre- 
vent a manifest wrong, courts of equity have inter- 
posed, by restraining the party whose conscience 
is thus bound from using the advantage he has im- 
properly gained ; and upon these principles bills 
to restrain proceedings in courts of ordinary 
jurisdiction are still frequent, though the 
*courts of common law have been enabled [*128] 
by the assistance of the legislature, as well 
as by a more liberal exertion of their inherent 
powers, to render applications of this nature to a 
court of equity unnecessary in many cases where 
formerly no other remedy was provided. Thus if 
a deed is fraudulently obtained without considera- 
tion, or for an inadequate consideration, or if by 
fraud, accident or mistake,( I ) a deed is framed con- 

(s) Read v. Read, 1 Ca. in Cha. Dawson v. Datcson, ib. 173. Old- 

115. Sir Jerorn,. Smithson's case, 2 ham v. Oldham, ib. 410. Haffey v, 

Ventr. 345. Anon. 2 Atk. 210. Ambl. Haffey, 14 Ves. 261. 
76. Ska/toe v. Shaftoe, 7 Ves. 171. 



(1) YeltoJi V. Hawkins, 1 J. J. Marshall's R. 2; Parcels t. Go- 
hegan, lb- 133 : Burdett v. Simon*, 3 lb. 192 ; Hyne's representatives v. 
Campbell, 6 Monroe's R. 287; Baugh v. Ramsey, 4 lb. 157,158; 
Barrett v. Floyd, 3 CalVs R. 465 ; Rosevell v. Fulton, 2 Cowen't R. 
129 ; Lyon v. Richmond, 2 J. C. R. 51 ; Gillespie v. Moon, lb. 585. 
But if a defence has been made at law and the consideration investi- 
gated, equity will not interfere. Yelton v. Hawkins, supra. It cannot 



L 



V 



182 DEMURRERS. 

trary to the intention of the parties in their con- 
tract on the subject, tlie forms of proceeding in the 
courts of common law will not admit of such an 
investigation of the matter in those courts as will 



interfere further than to correct a mistake in the amount of a judg- 
iTieDt obtained without fraud. lb. If a note is, by mistake, executed 
for too large a sum, it is a ground for relief in equity. Money paid by 
mistake, and as excessive interest, may be recovered back by bill. 
Athbrook v. TVatkins, 3 Monroe's R. 82. A judgment which has beeo 
obtained through mistake of tlie defendant at law will not be relieved 
against, if proper steps could have been taken. Farmer's Bank v. 
Vanmeler, 4 Randolph's R. 553 ; Inhabit inls of Essex v. Berry, 2 
Vermont R. 161. Equity allows bill where defence was not known 
to party until after judgment. Hubbard v. Hobson, 1 Breeie's (Illi- 
nois) R. 147; Foster v. Wood, 6 J. C. R. 87; but see Fish v. 
Lane, 2 Hayw. 342. If by mistake or the unskilfulness of the drawer, 
a bond be not drawn according to the understanding of the parlies, the 
surety of the obligee shall be subjected in equity as far as he under- 
stood himself to be subject. Hasans administrators v. Pitman, 16. 
331. If, through mistake, a seal is not put to a bond, chancery will 
supply the defect. Montvilie v. Haughton, 7 Day's R. 543. Where 
the intention is manifest, chancery will always relieve against mistakes 
in all agreements. Wiser v. Blachly, 1 J. C R. 607. It must have 
clear and satisfactory proof of the mistake and of the real agreement 
between the parties. Lyman v. U. S. Ins. Co. 2 J. C- R. 630 ; S. C: 
on appeal, 17 J. R. 373 ; Executors of Getman v. Beardsley, 2 J. C. 
R. 274. Harrison v. Jameson,^ lb. 232. When a seal or the signature of 
a person has, without competent authority, been affixed to a deed, equity 
may grant the party relief against the deed on the ground either of 
fraud or quia timet. Cummins v. Kennedy, A lb. 64. Where an aged 
man conveys his property to relatives on consideration of living with 
him and they abandon him, the deed will be set aside. Je^nkins y. 
Jenkins, 3 Monroe, 329. Bond of drunken man set aside. King'i 
ex'rs. V. Bryant's ex'rs. 2 H'tyw. 394. A judgment or decree obtained 
by fraud may be set aside in equity. Williams v. Fowler, 2 J. J. 
Marshall's R. 405. A forged deed will be ordered to be delivered up y 
and cancelled. Leigh r. Everharls' ex'rs- 4 76. 380. Has general ^ 
power to order a deed to be given up. Ex'rs. of Ward v. Ward, 1 
Hayio. R. 226. If it is too uncertain as to the estate granted, the 
court can set it aside. Pearse v. Oteens, lb. 234. The general prin- 



x; 



DEMURRERS. 183 

enable them to do justice. The parties claiming 
under the deed have therefore an advantage in 
proceeding in a court of common law which it is 
against conscience that they should use ; and a 
court of equity will on this ground interfere to re- 
strain proceedings at law until the matter has been 
properly investigated, and if it finally appears that 
the deed has been improperly obtained, or that it 
is contrary to the intention of the parties in their 
contract, will in the first case compel the delivery 
and cancellation of the deed, or order it to be de- 
posited with an officer of the court ; and will compel 
a reconveyance of property if any has been so con- 
veyed that a reconveyance may be neces- 
sary(/); and in the second *case will either [*129] 
rectify the deed according to the intention 
of the parties, or will restrain the use of it in the 
points in which it has been framed contrary to, or 
in which it has gone beyond, their intention in 

(f) See on this subject, Bishop of Willan v. Willan, 16 Ves. 72. Mur- 

Winchester v. Foumier, 2 Ves. 445. ray v. Palmer, 2 Sch. and Lefr. 474. 

Bate* V. Graves, 2 Ves. Jr. 287. Walker v. Symonds, 3 Swanst. 1. 

Pringle y. Hodgson, 3 Ves. 617. Gordon v. Gordon, 3 Swanst. 400. 

WHght y. Proud, 13 Ves. 136. Wood v. Abrey, 3 Madd. 417. 

Ware v. Horwood, 14 Ves. 28. Hu- Tweddell v. TweddeU, 1 Turn. R. 

guenin v. Bateley, 14 Ves. 273. 1(1). 



ciple of a court of equity is, tliat a bill in equity may be filed for 
the delivering up of an instrument which cannot be enforced at law, in 
order that the complainant may not be harassed by vexatious proceed- 
ings at law. Grover v. Hugell, 3 Ruts- 434. 

(1) And see the singular case of JVbr/on v. Reilly, in the 1st vol. of 
the CoUeetanea Juridita, and the bold opinion of Chancellor Northing- 
ton — an opinion which did honor to bis head and heart. There, a bill 
was filed for relief against a deed obtained under circumstances of 
fanatical delusion. Also, Apthorpe v. Comstock, 1 Hopk. 143 ; 8 Cow. 
386 ; 2 Paige, 482 ; Thompton v. Oraham, 1 Paige, 384. 



J 



184 DEMURRERS. 

their original contract(2^). The instances of the 
exercise of the jurisdiction of courts of equity in 
these cases, and especially in the case of a deed 
fraudulently obtained, are numerous(a:). On the 
ground of mistake the courts of equity have also 

frequently interfered in a variety of in- 
[*^130] stances, and particularly *in the cases of 

defective securities for money(i/), and of 
marriage settlements founded on previous articles, 
where the settlement has been contrary to the evi- 
dent intention of the parties in the articles(2;). 

The courts of equity will interfere upon the same 
grounds to relieve against instruments which des- 
troy, as well as against instruments which create, 
rights ; and therefore will prevent a release which 
has been fraudulently or improperly obtained from 

(u) See 2 Atk. 33. 203. Henkle v. purpose, to the injury of a third per- 

Royal Exchange Assur. Comp. 1 son. See Bromley v. Holland, Coop. 

Ves. 317. Bogers v. Earl, Dick. R. 9. 11 Ves. 535- 17 Ves. 112. 

294. Marquis of Townshend v. 1 Ves. and Bea. 244. Wynne v. 

Stangroom, 6 Ves. 328. Clowes v. Callandar, 1 Russ. R. 293 ; and se* 

Higginson, 1 Ves. and Bea. 524. 2 Swanst. 157, note, where the lead- 

Beaumont v. Bramley, 1 Turn. R. ing authorities on this subject are col- 

41. Ball V. Storie, 1 Sim. and Stu. lected. Of a forged instrument the 

210. 2 Sim. and Stu. 178. court ought to take the custody ; and 

(x) It has been sometimes doubted in such a case the instrument has 

whether the court ought to compel been generally ordered to be deposited 

the delivery and cancellation of an in- with an officer of the court. Bishop 

atrument which ought not to be en- of Winchester v. Fournier, 2 Ves. 

forced, and whether the more proper 445, and cases there cited(l). 

course would not be to order a perpe- (y) Sims v. Urry, 2 Ca. in Chan, 

tual injunction to restrain the use of 225. S. C. Rep. temp. Finch, 413, 

the instrument. See 1 Ves. jun. 284. and 2 Freem. 16. Burgh v. Francis, 

Byanx. Maekmath, 3 Bto.C.C. 15, 1 Eq. Ca. Ab. 320. Taylor v. 

and the cases there cited, and Mason Wheeler, 2 Vern. 564. Jennings v. 

V. Gardiner, 4 Bro. CO. 436. But Moore, 2 Vern. 609. Bothomly v. 

if the instrument ought not to be used, Lord Fairfax, 1 P. Wms. 334(2). 

it is against conscience for the party (z) On this subject, see Randall v. 

holding it to retain it, as he can only Willis, 5 Ves. 262. Taggart v. 

retain it for some sinister purpose ; Taggart, I Sch. and Lefr. 84. 

and in the case of a negotiable instru- Blackburn v. Stables, 2 Ves. and 

ment it may be used for a fraudulent Bea. 367- 1 Turn. R. 52. 



(1) And see Apthorp v. Comstock, 2 Paige's C. R. 482. 

(2) Phanix Fire Ins. Co. v. Gurnee, 1 Paige's C. R. 278. 



DEMURRERS. 185 

being made a defence in an action at law. And 
where a fine and non-claim were set up as a bar to 
an ejectment by an heir at law, who had filed a bill 
in equity before the time had run on the fine, for 
discovery of title deeds, and for other purposes, 
with a view to try his title at law, the House of 
Lords upon an appeal restrained the setting up 
the fine(a). In many cases of accident, as lapse 
of time, the courts of equity will also relieve against 
the consequences of the accident in a court of law. 
Upon this ground they proceed in the common 
case of a mortgage, where the title of the mort- 
gagee has become absolute at law upon default of 
payment of the mortgage-money at the time stipu- 
lated for payment(&). 

*As the courts of equity will prevent the [*131j 
unfair use of an advantage in proceeding 
in a court of ordinary jurisdiction gained by fraud 
or accident, they will also, if the consequences of 
the advantage have been actually obtained, re- 
store the injured party to his rights. Upon this 
ground there are many instances of bills to pre- 
vent the effect of a judgment at law, and to ob- 
tain relief in equity where it was impossible by 
any means to have the matter properly investi- 
gated in a court of law ; or where the matter 
might be so investigated, to bring it again into a 
course of trial(6') (1). 

(a1 Pincke v. Thornycroft, 1 Bro. C'ha. 43. 3 C. Rep. 17 ; Robinson 

C.C. 289. V. BcU, 2 Vern. 146; Thomas v. 

(6) See 7 Ves. 273. 2 Sch. and Gyles, 2 Vcrn. 232 ; Tilly v. Whar* 

Lefr. 685. ton, 2 Vern. 378. S. C. ib. 419, 

(c) Curtess v. Smalridge, 1 Ca. in 1 Eq. Ca. Ab. 377, 378 ; Countess of 

(1) See the form of a bill. Willis, 1 18. 

24 



186 DEMURRERS. 

Bills of the latter description, or (as they are 
usually called,) bills for a new trial, have not been 
of late years much countenanced(2). In general, 
it has been considered that the ground for a bill 
to obtain a new trial after judgment in an action 
at law must be such as would be ground for a bill 
of review of a decree in a court of equity upon 
discovery of new mattered) ; and therefore where 
judgment has been obtained against one under- 
writer on a policy of insurance, a point of law be- 
ing adjudged on a case reserved in favor of the 
plaintiff at law ; and afterwards in other actions 
on the same policy, against other underwriters, 
judgment was given for the defendants on the 
same point, the first judgment being deemed to 
have been clearly erroneous; a demurrer 
[*132] *was allowed to a bill brought by the de- 
fendant in the first action for a new trial (3). 
No new matter of fact had been discovered ; and 
if this bill had been sustained, a similar bill might 
have been filed, whenever a court of law had pro- 
nounced an erroneous judgment which could not 
be reversed by a writ of error(c). So, if the de- 
fendant in an action at law submits to go to trial 
without filing a bill in equity for a discovery of 
evidence, and after verdict against him attempts 
to obtain that discovery as a ground for a new 

Gainsborongh v. Gifford, 2P. Wms. (d) 1 Ca. in Cha. 43. 

424 ; Hankey v. Vernon, 2 Cox's R. (e) Gibson v. Bell on demurrer, 

12. 2 Ves. Jr. 135(1). 30 July 1800, in Chan. 

(1) Saunders v, Jennings, J. J. Marshall's R. 513. 

(2) See the form of a bill for a new trial. Willis, 167. 

(3) See the form of a demurrer. Willis, 436. Look, also, at page 
186, j)o*<, and notes there 



DEMURRERS 187 

trial, the court of equity will not countenance such 
a proceeding when there is no fraud in the con- 
duct of the plaintiff at law(/). 

Cases of oppression, where a man has taken ad- 
vantage of the situation of another to obtain from 
him an unreasonable contract, have been the sub- 
jects of relief on the same ground(^) (1); and in 
some cases the courts of equity have rescinded 
improper contracts on the grounds of general po- 
licy, and to prevent a public inconvenience, as in 
the case of securities given for marriage-bro- 
kage(/^), or for the obtaining of public offices, or 
employments(^) (2). 

*If a bill for any of these purposes does [*133] 
not show a sufficient ground for a court of 
equity to interfere, the defendant may demur for 
want of matter of equity in the plaintiff's case to 
support the jurisdiction of the court. And the 
courts of equity will thus restrain and relieve 

(/) Richards v. Symcs, 2 Atk. 18 Ves. 13. 6 Madi 109. 

319; Williams v. Lee, 3 Atk. 223; (h) Smith, v. Bruning, 2 Vern. 

Manning v. Mestaer, in Chan. 9 392. 3 P. Wms. 394; Williamson 

Dec. 1786, on cause shown against v. Glhon, 2 Sch. & Lefr. 357. 

dissolving injunction. See Fluid v. (i) Law y. Law, 3 P. Wms. 391 ; 

Beaumont, 2 Swanst. 204. Whittingham v. Bourgoyne, 3 

(o-) Bosanquelt v. Dashwood, Ca. Anstr. 900 ; Hannington v. Du 

t. Talb. 38; Osmond v. Fltzroy, Chatel, 1 Bro. C. C. 124. S. C. 

3 P. Wms. 131; Cook v. Clayivorth, 2 Swanst. 159, note. 



(1) See the form of a bill in such a case. Willis, 171. 

(2) See the form of a demurrer to meeft^rtiis sort of case. Willis, 
437 ; and also the form of a bill. Ih. 180. And a reference is there 
given to 1 Chittij on PL 218, in connexion with the following remark : 
In pleadings at law, y9ui/jc s/a<Mie* and the facts which they ascertain, 
must be noticed by the courts, without their being stated in pleading ; 
and it is only necessary to state facts, which will appear to the court to 
be affected by the statute, concluding in general with an express refer- 
ence to the statute, as by the words " contrary to the form of the 
statute." 



188 DEMURRERS. 

against the effect of proceedings in other courts in 
such cases only as concern mere civil rights ; and 
therefore if a bill is brought for relief against a 
proceeding at law upon a criminal prosecution, as 
an indictment, or information, or a mandatory 
writ, as a writ of prohibition, a mandamus, or any 
writ which is mandatory and not remedial, the de- 
fendant may demur(/c)(l). 

3. The principles of law which guide the de- 
cisions of the courts of ordinary jurisdiction, and 
especially the courts of common law, were princi^ 
pally formed in times when the necessities of men 
were few, and their ingenuity was little exercised 
to supply their wants. Hence it has happened 
that, according to the principles of natural and 
universal justice, there are many rights for inju- 
ries to which the law, as administered by those 
courts, has provided no remedy. This is particu- 
larly the case in matters of trust and confidence, 
of which the ordinary courts, taking in a variety 
of instances no cognizance, and the positive law 
being silent on the subject, the courts of equity, 
considering the conscience of the party intrusted 
as bound to perform the trust, have interfered to 
compel the performance(2). And it has long been 

settled, that where trustees are desirous of 
[* 134] acting under the direction *and protection 

of a court of equity, they may file a bill for 
those purposes against the persons interested in 

(/c) Lord Montague v. Dudman, 2 Ves. 396. 1 Eq. Ca. Ab. 131 ; and 
see 18 Ves. 220. 

(1) See the form of a demurrer. JViltis, 133. 

^2) See the form of a bill for relief in matters of trust. JVillit, 188. 



DEMURRERS. 189 

the trust-property (/)(1). And in many other ca- 
ses where the positive law has been silent, and 
there are rights in conscience for injuries to which 
the ordinary courts afford no remedy, the courts 
of equity have also interfered ; enforcing the prin- 
ciples of universal justice upon the ground of ob- 
ligation on the conscience of the party against 
whom they are enforced(m). To support a bill 
in any of these cases it is necessary for the plain- 
tiff to show that the subject of the suit is such up- 
on which a court of equity will assume jurisdic- 
tion ; and if he fails to do so the defendant may 
demur. 

4. Courts of equity in many cases will act as 
ancillary to the administration of justice in other 
courts, by removing impediments to the fair deci- 
sion of a question. Thus, if an ejectment is 
brought to try a right to land in a court of com- 
mon law, a court of equity will restrain the party 
in possession from setting up any title which may 
prevent the fair trial of the right(2) ; as a term 
for years, or other interest in a trustee, lessee, or 
mortagee(n). But this will not be done in every 

(I) Leech v. Leech, 1 Ca. in Cha. value of assets which he had aliened. 
249. And see Fielden v. Fielden, (n) 6 Ves. 89, 1 Sch. and Lef. 

1 Sim. & Stu. 255. 429 ; and see 13 Ves. 298 ; Armi- 

(m) It is said, 1 P. W. 777, that tage v. Wadsworth, 1 Madd. R. 189 ; 

before the statute of the 3 & 4 W. Barney v. Luckett, 1 Sim. & Stu. 

ftnd M. C: 14, courts of equity made 419 ; Northey v. Pearce, ib. 420. 
an heir responsible to creditors for the 

(1) Mr. Willis, in giving (he form of such a bill, refers to the case 
,of Brown v. Yeall, referred to in a note to 7 Ves. 50, and observes, 
that the bill in this case appeared to have been signed bj Lord Redes- 
dale when at the bar, and, as it seems, to illustrate the theory of his 
lordship's treatise ; and therefore he (Mr. Willis) had adopted it. 
p. 201. 

(2) See the form of such a bill. Willis, 210, 



190 DEMURRERS. 

case ; for as the court proceds upon the 
[*135] principle that the party in possession *ought 
not in conscience to use an accidental 
advantage to protect his possession against a real 
right in his adversary, if there is any circumstance 
which meets the reasoning upon this principle the 
court will not interfere. Therefore, if the posses- 
sor is a purchaser for a valuable consideration 
without notice of the title of the claimant, this is 
a title in conscience equal to that of the claimant, 
and the court will not restrain the possessor from 
using any advantage he may be able to gain to 
defend his possession(<?). It can hardly appear 
upon the face of a bill that the defendant is in such 
a situation, and therefore the benefit of this de- 
fence must generally be taken by plea ; but if the 
case should be so stated, the defendant might de- 
mur ; because the case stated would appear to be 
such in which a court of equity ought not to as- 
sume jurisdiction. If the matter suggested in a 
bill as an impediment to the determination of a 
question in a court of ordinary jurisdiction in fact 
is not so, the defendant may also demur ; for then 
there is no pretence for the interference of a court 
of equity. 

5. Pending a litigation the property in dispute is 
often in danger of being lost or injured, and in such 
cases a court of equity will interpose to preserve 
it, if the powers of the court in which the litigation 
is depending are insufficient for the purpose. Thus 
during a suit in an ecclesiastical court for admi- 

(o) See 2 Ves. Jr. 457, 458, MaundreU v. Maundrell, 7 Ves. 567. S . C. 
10 Ves. 246. 



DEMURRERS. 191 

nistration of the effects of a person dead, a court 
of equity will entertain a suit for the mere 
preservation *of the property of the de- [*136] 
ceased till the litigation is determined, al- 
though the ecclesiastical court, by granting an ad- 
ministration pendente lite, will provide for the col- 
lection of the effects(^)(l). And, pending an eject- 
ment in a court of common law, a court of equity 
will restrain the tenant in possession from com- 
mitting waste, by felling timber, ploughing ancient 
meadow, or otherwise(^). Against this inconve- 
nience a remedy at the common law was in many 
cases provided during the pendency of a real action 
by the writ of estrepement(r) ; and when the pro- 
ceeding by ejectment became the usual mode of 
trying a title to land, as the writ of estrepement 
did not apply to the case, the courts of equity, pro- 
ceeding on the same principles, supplied the de- 
fect. 

But, in general, if the court in which the suit is 

depending can itself provide for the safety of the 
property, a demurrer will hold. The interference 
to preserve the effects of a person dead pending a 
litigation in the ecclesiastical court, touching the 
administration of those effects, scarcely forms an 
exception to this rule ; for the protection afforded 
by an administration pendente lite has been often 

(p) King V. King, 6 Yes. 112. 1. S. C. IJac. R. 466. 6 Madd. 

Richards v. Ckave, 12 Ves. 462. 49. 105. 

Edmunds v. Bird, 1 Ves. and Bea. {q) Pulteney v. Shelton, 5 Ves;^ 

542. Atkinson v. Henshaw, 2 Ves. 260, note. Lathropp v. Marsh, 5 

and B. 85. Ball v. Oliver, 2 Ves. Ve?. 259 ; and see Onslow v. ^, 

and B. 96. Rutherford v. Douglas, 16 Ves. 173. 
Rep. 1 Sim. and Stu. Ill, a. 3 (r) F. N. B. 60. 
Meriv. 174. Jones v. Frost, 3 Madd. 

(1) See the form of such a bill. Willis, 215. 



192 DEMURRERS. 

a very insufficient protection ; and in the adminis- 
tration of personal effects tlie courts of equity have 

assumed a concurrent jurisdiction with 
[*137] the ecclesiastical courts, *and for many 

purposes have a much more effectual juris- 
diction, particularly for payment of creditors, and 
concluding all parties by the judgment of the court 
in the distribution of the effects, and preserving 
the surplus for the benefit of those who may finally 
appear to be entitled to it(l). 

6. Doubts have been suggested how far a court 
of equity ought to interfere to prevent injury ari- 
sing to property pending a suit founded on trespass. 
This doubt, it should seem, ought to be confined 
to cases of mere trespass, and where the injury 
done is not probably irreparable(5)(2). But when 
a doubtful right has been asserted in a manner 
productive of irreparable injury the courts have 
interfered. Therefore, where the tenants of a 
manor, claiming a right of estovers, cut down a 
great quantity of growing timber of great value, 
their title being doubtful, the court of chancery 
entertained a bill at the suit of the lord of the 
manor to restrain this assertion of it(/) ; and in- 
deed the commission of waste of every kind, as the 
cutting of timber, pulling down of houses, plough- 

(«) Hanson v. Gardiner, 7 Ves. (/) Stonor v. Strange, Mich. 1767, 

305. 10 Ves. 291. 17 Ves. 110. And Stonor \. Whiting, Hil. 1768. 

281. 1 Swanst. 208. 210. See above, in Chan. 1 Sch. and Left. 8. 
115, note (u). 



(1) See the form of a bill by simple contract creditors for payment 
of debts and marshalling assets. Willis, 220. 

(2) See the form of a bill for an account and injunction where a 
trespass has been committed. Willis, 228. 



D£MIJRRERS. 193 

ing of ancient pasture, working of mines, and the 
like, is a very frequent ground for the exercise of 
the jurisdiction of courts of equity, by restraining 
the waste till the rights of the parties are deter- 
mined. The courts of equity have also extended 
their relief to restrain the owner of a mine from 
working minerals in the adjoining land of another, 
though a mere trespass under the cover of a 
right(M). 

*The courts of equity seem to have pro- [* 138] 
ceeded upon a similar principle in the very 
common cases of persons claiming copy-right of 
printed books, and of patentees of alleged inven- 
tions, in restraining the publication of the book at 
the suit of the owner of the copy, and the use of 
the supposed invention at the suit of the paten- 
tees(l). But in both these cases the bill usually 
seeks an account ; in one, of the books printed, and 
in the other, of the profit arisen from the use of the 
invention : and in all the cases alluded to it is fre- 
quently if not constantly, made a part of the prayer 
of the bill that the right, if disputed, and capable 
of trial in a court of common law, may be there 
tried and determined under the direction of the 
court of equity ; the tinal object of the bill being a 
perpetual injunction to restrain the infringement 
of the right claimed by the plaintiff(a:). 

(u) MilcheU v. Dors, 6 "Ves. 147. Wilkins v. Aikin, 17 Vea. 422. 

7 ves. 308. Thomas v. Oakley, 18 Soutliey v. Sherwood, 2 Meriv. 435. 

Ves. 184. Lord and Lady Percival v. Phipps, 

(x) On the subject ofcopy-right, see '2 Ves. and Bea. 19. Gee v. Priteh' 

Hogg V. Kirby, 8 Ves. 215. Long- ard, 2 Swanst. 402. Rundell v; 

man v. Winchester, 16 Ves. 269. Murray, 1 Jac. R. 311. Lawrence 

(1) See the form of such a bill as to copyright. Willis, 233; and 
Dotes there. And as to a patent, lb. 245. 

25 



194 DEMURRERS. 

In all cases of waste committed on lands or te- 
nements the courts of equity originally proceeded 
by analogy to the provisions of the old common 
law, by which tenant by the courtesy and in dower 
answered only for the value of the waste done, and 
a custos was assigned to prevent further waste. 
The statute ofMarlebridge, 52 H. III. c. 23, add- 
ed a fine for the oftenceto full damage for 
[*139] the injury done ; and afterwards *the statute 
of Gloucester, 6 Edw. I. c. 5, gave treble 
damages, and the forfeiture of the place wasted by 
tenant by the courtesy, for life, or for years. The 
forfeiture by waste, and all penalties, ought to be 
waved in a bill for restraining waste(2/), the courts 
of equity declining to compel a discovery which 
may subject a defendant to any penalty or forfeit- 
ure, and confining the relief given to compensa- 
tion for the damage done, and restraining future 
injury(3). So at law the person entitled to the 
benefit of forfeiture for waste might wave the 

V. Smith, 1 Jac. R. 471. Barfield v. Ves. and Bea. 2^8. HiU v. Thomp- 

Nicholson, 2 Sim. and Stu. 1(1); ou son, 3 Meriv. 622(2). 
that of patents, see Uarmer v. Plane, (y) 1 Atk. 451. 
14 Ves. 130. Canham, v. Jones, 2 



(1) Also, JUawman v. Tegg, 2 Russ. S85 ; Baily v, Taylor, 1 Russ. 
Sf Jtf. 73. As (o restoring a bill relating to copyriglit. Barfield v. 
Jficholson, 1 Sim. 494. The act of congress of May 31, 1790, ch. 42, 
(2 Bior. 104,) refers the party injured in a case of copyright to any 
court of record of the United Stales wherein the same is cognizable ; 
but no jurisdiction is given to either the circuit or district courts. 
Binns v. Woodruff', Coxe's Digest, 197. 

(2) Sheriff v. Coales, 1 Russ. Sf M. 159; Burrall y. Jewett, 2 
Paige's C. R. 134. 

(3) See the forms of bills to restrain waste. Willis, 39. 254; and 
prayer for injunction to restrain, lb. 9. And see notes at p. 254, of 
the eame book. 



DEMURRERS. 195 

action for waste, and maintain an action of trover 
for trees felled by a tenant impeachable for 
waste(2^). 

With respect to copyholds, the courts appear, 
in some instances, to have refused to restrain 
waste, and left the lord to his legal remedy by 
forfeiture(«). The rights of the lord and tenant 
of copyholds depending on the custom of each ma- 
nor, it has perhaps been thought that the lord is 
not entitled to that protection which is given to 
rights ascertained by the common law of the land, 
and that he has generally the remedy in his own 
hands. Upon a lease of land in Ireland for lives, 
renewable for ever, the courts of equity there have 
declined restraining waste not specially provided 
for by the terms of the lease(6). 

*But in the case of waste the courts of [*140] 
equity have in many instances given re- 
medies where the common law has provided none. 
Thus in the case of coparceners(c) and tenants in 
common(^Z), the court has interfered to prevent 
the destruction of the property by one coparcener, 
or one tenant in common, to the injury of the 
rest(e). So where tenant for life not impeacha- 
ble for waste has proceeded to destruction of a 
mansion-house(y), or to cut down ornamental 
trees, or trees necessary for the protection of a 
mansion, or young saplings(^). In these cases it 

(z) Berry v. Heard, Cro. Car. 242. (c) Beaumont and Sharp, May 9, 

(a) Dench v. Bampton, 4 Ves. 1751. 

700. In a cause, however, o( Rich- (d) Hole v. Thomas, 7 Ves. 589; 

ards V. Noble, before Lord Erskinc, Tvort v. Twort, 16 Ves. 128. 

when Chancellor, now reported in 3 (e) 7 Ves. 590. 16 Ves. 131. 

Meriv. 673, this decision was over- (/) Vane v. Lord Barnard, 2 

ruled. Vern. 738. 

(6) Calvert v. Gason, 2 Sch. and {g) Abraham v. Bubb, 2 Freem. 

Licfr. 561. 52; Chambcrlyne t. Dummer, 1 



196 DEMURRERS. 

should seem that the courts liave proceeded on the 
ground that the acts done were an unconscien- 
tious use of the powers given to the particular 
tenant, and in some instances, perhaps, partaking 
of the nature of mere malicious mischief (/*). It 
has been much doubted whether in some instan- 
ces this relief has not been carried to an extent 
which may be found productive of great inconve- 
nience, and perhaps injustice, if the decisions 
should be implicitly foIlowed(«). 

Where persons vvere bound by covenant to 
keep the banks of a river in repair, and by their 
acts in contravention of the covenant great 
[*141] injury was likely *to arise, a court of equi- 
ty has interfered by injunction(A;). 
In all the cases in which the interference of a 
court of equity is thus sought, if the bill should 
not clearly show the title of the plaintiff, or his 
right to demand the assistance of the court in his 
favor, or that the case is one to which the court 
will apply the remedy sought, the defendant may 
demur. 

7. It has been mentioned(Z) that where two or 
more persons claim the same thing by different 
titles, and another person is in danger of injury 
from ignorance of the real title to the subject in 
dispute, courts of equity will assume a jurisdiction 
to protect him ; and that the bill exhibited for this 
purpose is termed a bill of interpleader, the object 
of it being to compel the claimants to interplead, 

Bro. C. C. 166, and cases there (i) See 16 Ves. 185. 

piled ; and see above, p. 115, note. (A) Lord Kilmorey v. Thackeray y 

{h) 2 Freem. 278. Bishop of cited 2 Brown, C. C. 65. 
London v. Web, 1 P. Wms. 527. (l) See above, p. 48. 



DEMURRERS. 197 

SO that the court may adjudge to whom the pro- 
perty belongs, and the plaintiff may be indemni- 
fied(l). The principles upon which the courts of 
equity proceed in these cases are similar to those 
by which the courts of law are guided in the case 
of bailment ; the courts of law compelling inter- 
pleader between persons claiming property, for 
the indemnity of a third person in whose hands 
the property is, in certain cases only, as where 
the property has been bailed to the third person 
by both claimants, or by those under whom both 
make title; or where the property came to the 
hands of the third person by accident ; and the 
courts of equity extending the remedy to 
all cases to which *in conscience it ought [*142] 
to extend, whether any suit has been com- 
menced by any claimant, or only a claim 
made(m). 

This remedy has been applied to the case of 
tenants of lands charged with annuities, and liable 
to distress by their landlord, and the claimants of 
annuities(»^), and to other cases of disputed ti- 
tles(o), in which the tenants have been permitted 
to pay their rents into court(p). 

(m) It may here be noticed, that if Lonl Waltham, against Vaux and 

&t the hearing, the question between others, 28 Feb. 1785 ; Aldridge v. 

the defendants be ripe for decision, this Thompson, 2 Bro. C. C.150; Lord 

court will make a decree; and that if Thomond's case, cited 9 Ves. 107; 

Buch be not the case, it will direct an Angell v. Hadden, 15 Ves. 244, S. 

action, an issue, or a reference to a C. 16 Ves. 202. 

master, in order to bring the matter (o) Wood v. Kay and wife and 

to a determination. See Duke of others, 19 Dec. 1786. 2 Ves. Jr. 312. 

Bolton V. Williams, 2 Ves. Jr. 138. 16 Ves. 203, 204. 

S. C. 4 Bro. C. C. 297; Angell .s. (p) It is however observable, that 

Hadden, 16 Ves. 202. in such cases the Court interferes on 

(n) Surry and others, tenants of the ground of privity having been 

(1) See the form of such a bill, Willis, 303, and notes there. Also, 
p. 49, 50, ante, and the notes. 



198 DEMURRERS. 

If a bill of interpleader does not show that each 
of the defendants whom it seeks to compel to in- 
terplead claims a right, both the defendants may 
demur ; one, because the bill shows no claim of 
right in him, the other, because the bill showing 
no claim of right in the co-defendant shows no 
cause of interpleader(^)(2). Or if the plaintiff 
shows no right to compel the defendants 
to interplead, whatever rights they may 
[*143] *claim, each defendant may demur(r). 
A bill of this nature is also liable to a pe- 
culiar cause of demurrer ; for as the court will 
not permit such a bill to be brought in collusion 
with either claimant, the plaintiff, as has been al- 
ready mentioned, is required to annex to his bill 
an affidavit that it is not exhibited in collusion 
with any of the parties, to induce the court to 
entertain jurisdiction of the suit ; and the want of 
that affidavit is therefore a ground of demur- 
created by the act of the landlord be- were to file such a bill agaiiut his 
tween his tenant and the other claim- landlord, and a j^erson with whom he 
ant. See Cowtan v. Williams , 9 Ves. himself has no privity, but who claims 
107 ; Clarke v. Byne, 13 Ves. 383; by a title adverse to that of the land- 
E- I. Comp. V. Edwards, 18 Ves. lord. Dungey\. Angove,2Yes.2r. 
376. 304. 2 Anstr. 532 ; Johnson v. At- 

r^W Ves. 249(1). kinson, 3 Anstr. 798; or, an agent 

(r) As, for example, if a tenant against his principal and a third per- 



(1) And see Randolph's administralrix v. Kinney, 3 Randolph's R, 
394. A bill of interpleader may be filed, though the party has not 
been sued at law, or has been sued by one only of the conflicting 
claimants, or though the claim of one of l!ie defendants is actionable at 
law and that of the other in equity. Ri'hnrds v. Salter. 6 J. C. R. 
445. And see also, Langston v. Boylston,2 Vet. Jr. 107; Angel 
V. Hadden, supra ; J\lorgan v. Monsack, 2 Meriv. 107 ; Stephenson v. 
Anderson, 2 V. 8^ B. 407. 

(2) See the forms of such demurrers. Willis, 440, 441. And 
look at the case of Bedell v. Hoffman, 2 Paige's C. R. 199. 



DEMURRERS. 199 

rer(^5)(2). A bill of this nature generally prays 
an injunction to restrain the proceedings of the 
claimants in some other court; and as this may 
be used to delay the payment of money by the 
plaintiff, if any is due from him, he ought by his 
bill to offer to pay the moneydue into court(/). If 
he does not do so it is perhaps in strictness a 
ground of demurrer. 

8. In many cases the courts of ordinary juris- 
diction admit, at least for a certain time, of re- 
son, Nicholson v. Knowles, 5 Madd. and see 2 Ves. & Bea. 410. 
47(1); or, a debtor against his ere- (/) Lord T'hanet v. Patterson, 3 
ditor become a bankrupt, and the as- Barnard, 247. 2 Ves. Jr. 108, 109. 
signees of the latter. Harlow v. It seems that there might be a case in 
Crowley, 1 Buck. B. C. 273, and which a demurrer would be prevented 
Lowndes v. Cornford, 18 Ves. 299. by the money being brought into- 
S. C. 1 Rose, B. C. 180. court. See 19 Ves. 323. 

(s) Metcalfy. Harvey, 1 Ves. 248 ; 



(1 ) But see the case of Pearson v. Cardon, 4 Simons R. 220. The 
facts of which case were these : B. and Co. deposited goods with the 
compiainaots (warehousemen) to await their directions; and they after- 
wards directed that the goods should be transferred to and held for T., 
which was done accordingly. The goods were subsequently claimed 
by C. as having been deposited by him with B. and Co., as his agents, 
for the purpose of sale. Held, that although the complainants were 
the agents of B. and Co., yet that C. claimed under a paramount title ; 
and, therefore, that it was a case of interpleader. 

(2) Tubin v. Wilson, 3 J. J. Marshall's R. 67 ; Manks v. Holroyd, 
1 Cotoen's /J. 691. In Connecticut, there is do occasion for this affi- 
davit. J^Tash V. Smith, 6 Day's R. 421. Nor is the non-offer of 
bringing the money into court, any ground for demurrer, lb. See 
the form of a demurrer for want of such an affidavit. Willis, 442 ; 2 
Equity Draft. 77. (2d edit.) The form of the affidavit in Harrison's 
Pract. is said to go too far. Stevenson v. Anderson, 2 Ves. Sf B. 410., 
In Prax. Aim. Cur. Can. part 2, p. 80, there is the form of one which 
does not seem liable to the same objection. It runs thus: "The 
" plaintiff A. B. maketh oath and saith, that this bill is exhibited by 
" him voluntarily, and on his own account, and at his own costs ; and 
" not at the desire or by the persuasion, or at the costs of any of the 
" parties defendants thereto." 



200 DEMURRERS. 

peated attempts to litigate the same ques- 
[*^144] tion. To put an *end to the oppression 
occasioned by the abuse of this privilege 
the courts of equity have assumed a jurisdiction(w). 
Thus, actions of ejectment having become the 
usual mode of trying titles at the common law, 
and judgments in those actions not being in any 
degree conclusive, the courts of equity have inter- 
fered ; and, after repeated trials, and satisfactory 
determinations of questions, have granted perpetu- 
al injunctions to restrain further litigation(a:), and 
thus have in some degree put that restraint upon 
litigation which is the policy of the common law 
in the case of real actions(2/)(l). 

Upon the same principle(2^) the courts of equity 
seem to have interfered in cases as well of private 
as of public nuisance ; in the first, at the suit of 
the party injured(«), in the second, at the suit of 
the attorney general(&) ; restraining the exercise 
of the nuisance where the proceedings at law are 
ineffectual for the purpose, and preventing the cre- 
ation of a nuisance where irreparable injury to 
individuals, or great public injury, would ensue(c). 

(tt)2 Sch. & Left. 211. (z) See Dick. 164. 16 Ves. 342. 

(x) Earl of Eath v. Sherwin, 19 Ves. 622. 

Free, in Clian. 261. S. C. 4 Brown, (a) See Ryder v. Bcniham, 1 Ves. 

P. C. 373 ; Toiul. ed. Leighton v. 543 ; Att. Gen. v. ISichol, 16 Ves. 

Leighton, 1 P. Wms. 671. S. C. 4 338. S. C. 3 Meriv. 687. 

Bro. P. C. 378, Toml. ed. And see (6) See Anon. 3 Atk. 750. S. C. 

Anon. Gilb. Eq. R. 183. S. C. 2 n&med Baines \. Baker, Amb. 158; 

Eq. Abr. 172. Barefoot v. Fry, Att. Gen.\. Clearer, 18 Ves. 211. 

Bunb. 158. 2 Sch. & Lefr. 211. (c) 16 Ves. 342(2). 

(y) Strange 404. 

(1) The Revised Statutes of New-York liave fixed the number of 
new trials at two, in cases of ejectment. 2 R. S. 309. 

(2) Van Bergen v. Van Bergen., 2 J. C. R. 272; Gardner v 
Trustees of JVewburgh, lb. 162; Hart v. JUayor^SfC, of Albany, 3 



DEMURRERS. 201 

In the case of a private nuisance it seems necessa- 
ry that a judgment at law, ascertaining the 
rights of *the parties, should have been [*145] 
previously obtained(</) (1). On informa- 
tions by the attorney general on behalf of the 
crown, the court of exchequer has proceeded to 
the abatement of nuisances injurious to the royal 
prerogative, such as nuisances in harbors, or eveti 
trespasses on the public rights of the crown with- 
out any nuisance(e). If a trespass is made on the 
soil of the crown, whether reserved for the private 
use of the sovereign, or for public purposes, and 
the trespass does not produce a public injury, the 
jurisdiction may be founded on the right of the 
crown to have the land arrented, and the profit 
accounted for as part of the royal revenue, in thd 
nature of an assart; and if the trespass produces, 
or may in its consequences produce, public injury, 
the crown is entitled to the most effectual means 
of preventing the injury (/). 

Courts of equity will also prevent multiplicity 

(d) 19 Ves. 622. Chalk v. Wyatt, 1. c. 4. p. 13. Churchman v. Tuna- 

3 Meriv. G88. Wynstanley v. Lee, 2 tal, Hardr. 162. Att. Gen. v. Rich- 

Swanst. 333(2). ard, Anstr. 603. 

{c) Att. Gen. V. Forbes, Excheq. (/) 18 Ves. 218. 
Trin. 1795. Hale de Jure Maris, p. 

Paige's C. R. 213. There must be a case of strong and imperious 
necessity or the right must have been previously established at law, 
before (he court will lend its aid in restraining the exercise of a nui- 
sance. Corning v. Lowtrie, 6 lb. 439. 

(1) Sec the form of a demurrer in such a case. Willis, 4^2 ; and 
note (A) there. 

(2) It has been said, in Maryland, that chancery will restrain a pub- 
lic nuisance, pending any judicial proceedings before those tribunals by 
which the authority to do (he act or its lawfulness is to be determined. 
Williamson v. Carnan, 1 Gill tf Johns. 184. 

26 



202 DEMURRERS, 

of suits ; and the cases in which it is attempted, 
and the means used ibr that purpose, are various. 
With this view, where one general legal right is 
claimed against several distinct persons, a bill 
may be brought to establish the right(^)(l). Thus 
where a right of fishery was claimed by a corpo- 
ration throughout the course of a consi- 
[*146] derable river, and was opposed by *the 
lords of manors and owners of land adjoin- 
ing, a bill was entertained to establish the right 
against the several opponents, and a demurrer was 
overruled(/i). 

As the object of such bill is to prevent multi- 
plicity of suits by determining the rights of the 
parties upon issues directed by the court, if neces- 
sary for its information, instead of suflering the 
parties to be harassed by a number of separate 
suits, in which each suit would only determine the 
particular right in question between the plaintiff 
and defendant in it, such a bill can scarcely be 
sustained where a right is disputed between two 
persons only, until the right has been tried and de- 
cided upon at law(i). Indeed in most cases it is 
held that the plaintiff ought to establish his right 
by a determination of a court of law in his favor 
before he files his bill in eqmty{k) ; and if he has 
not so done, and the right he claims has not the 

(g-) 2 Atk. 484. 11 Ves. 444. 1 Atk. 282. 

Corporation of Carlisle v. MVZson, (J.) Lord Teynham v. Herbert^ 2 

13 Ves. 276. Duke of Norfolk v. Atk. 483. 

Myers, 4 Madd. 83. 1 Jac. and W. (A) 1 Atk. 284. Anon. 9 Ves. 414. 

3Gy. 2 Sch. and Lefr. 2U8. 11 Ve«. 444. 

(A) Mayor of York v. Pilkinglon, 1 Jac. and W. 369. 

(1) See the form of such a bill, Willis, 277. 



DEMURRERS. 



203 



sanction of long possession(/), and he has any means 
of trying the matter at law(77?), a demurrer will 
hold(l). If he has not been actually interrupted 
or dispossessed, so that he has had no opportunity 
of trying his right, he may bring a bill to establish 
it though he has not previously recovered in affirm- 
ance of it at law, and in such a case a demurrer 
has been overruled(?e). 

*It is not necessary to establish a right [*147] 
at law before fihng a bill where the right 
appears on record, as under letters patent for a 
new invention, in which case a demurrer to a bill 
for an injunction to restrain an infringement of 
the patent right has been overruled(<>). So in the 
cases of bills brought by authors or their assignees 
to restrain the sale of books where the right 
which is the foundation of the bill is grounded on 
an act of parliament(^). And where a right ap- 
peared on record by a former decree of the court it 
was determined that it was not necessary to esta- 
blish it at law before filing a bill(^). Where a 
right prima facie and of common right is vested 
in the crown, it will receive the same protec- 
tion(r), and this principle may be applied to some 
of the cases mentioned in a preceding page. 

(0 Bush V. Western, Prec. in Rutland, 2 Bro. P. C. 39- Toml. ed. 

Chan. 530. 2 Sch. and Lefr. 209. 

(m) Whitchurch v. Hide, 2 Atk. (o) Horton and Malhy, in Chan: 

391. WcU^ V. Smeaton, in Chan. 27 23 July, 1783. 3 Meriv. 624. 
May, 1784. ( p) 1 Ves. 476(2). 

(n) 1 Atk. 284. And see Duke of (q\ Ibid. 
Dorset v. Girdler, Prec. in Chan. (r) See 6 Ves. 713. Grierson v. 

531. But see Welby v. Duke of Eyre, 9 Yes. 3il. 13 Ves. 508. 

(1) See the form of a demurrer, relating to a nuisance, which will 
answer in this case. Willis, 443. 

(2) And see Mawman v. Tegg, 2 Rust. 285. 



204 



DEMURRERS. 



A court of equity will thus protect private 
rights, or rights of those who may be comprehend- 
ed under one common capacity, as the inhabitants 
of a parish, or the tenants of a manor, which has 
been frequently done in bills to establish parochial 
customs of tithing disputed by the tithe-owner, and 
more rarely in bills to establish the customs of 
manors disputed by the lord(5) ; but will 
[*148] not establish or decree a perpetual *in- 
junction for the enjoyment of a right in 
contradiction to a public right, as a right to a high- 
way, or common navigable river, for that would be 
to enjoin all the people of England(<), although it 
will restrain a public nuisance at the suit of the 
attorney-general. 

A court of equity will also prevent injury in 
some cases by interposing before any actual injury 
has been suffered ; by a bill which has been some-, 
times called a bill quia timet, in analogy to pro- 
ceedings at the common law, where in some cases 
a writ may be maintained before any molestation, 
distress, or impleading(z^)(l). Thus a surety may 

(s) New Elme Hospital v. Ando- (t) Lord Hardwicke, in Lord 

ver, 1 Vern. 266. Baker v. Rogers, Pauconbergh and Pierse, 11th of 

Sel. Ca. in Cha. 74. Coicper v. May, 1753. 2 Eq. Ca. Ab. 171. 

Clerk, 3 P. Wms. 155. 2 Eq. Ca. Ambl. 210. 

Ab. 172. (m) Co. Litt. 100. a. 



(I) A bill quia timet will not lie, unless the complainant may be sub- 
jected to loss by the neglect, inadvertence or culpability of another. 
Randolph's administrator v. Kinney, 3 Randolph's R. 394. 

The preventive relief which this species of bill affords being re- 
quisite in those cases only where the property is of a perishable nature, 
it cannot, of course, be necessary in respect of the inheritance of real 
estate. Jerem.y's Eq. Jur. 350. 

A plea of a former recovery to a bill quia timet must show that the 



DEMURRERS. 205 

file a bill to compel the debtor on a bond in which 
he has joined to pay the debt when due, whether 
the surety has been actually sued for it or not; and 
upon.a covenant to save harmless, a bill may be 
filed to relieve the covenantee under similar cir- 
cumstances(a:)( 1 ). 

9. To administer to the ends of justice without 
pronouncing any judgment which may affect any 
rights, the courts of equity in many cases compel 
a discovery which may enable other courts to de- 
cide on the subject. The cases in which this 
jurisdiction is exercised will be considered in treat- 
ing of demurrers to discovery only. 

10. When the testimony of witnesses is in dan- 
ger of being lost before the matter (o 
which it relates can *be made the subject [*149] 
of judicial investigation, a court of equity 

will lend its aid to preserve and perpetuate the 
testimony(i/) ; and as the courts of common law 
cannot generally examine witnesses except viva 
voce upon the trial of an action, the courts ot 
equity will supply this defect by taking and pre- 
serving the testimony of witnesses going abroad, 
or resident out of the kingdom(2:), which may be 

(a;) Lord Ranelaugh v. Hayes, 1 Donovan, 3 Ves. & Bea. 76 ; BoiOr 

Vern. 189, 190, and on the general den v. Hodge, 2 Swanst. 258 ; Chcr 

subject, see also 1 Ves. 283. Flight minant v. De la Cour, 1 Madd. R. 

V. Coofc, 2 Ves. 619. Green \. Pigot, 208; Deris v. Turnbull. 6 Madd. 

1 Bro. C. C. 103. Brown V. Dud- 232; Baskett v. Toosey, 6 Madd. 

fcrtrf^e, 2 Bro. C.C. 321. 261: Angell v. Angell, 1 Sim. & 

(y) See above, 52, note (y). Stu. 83 ; Mendizabel v. Machado, 2 

(z) As to the examination of wit- Sim. & Stu. 483. 
nesses resident abroad, see Cock v. 



same subject matter and the right to the same land was before decided 
upon. C'ttes y. Loflus' heirs, 4 Monroe's R. 441. 

(1) See the form of a bill iu such a case. Willis, 298, 



206 DEMURRERS. 

afterwards used in a court of common law. As 
the object of this jurisdiction is to assist other 
courts, and by preserving evidence to prevent fu- 
ture litigation, there are a few cases in which the 
court will decline to exercise it. A demurrer to 
a bill seeking the benefit of it will therefore sel- 
dom lie(rt) ; and in a case where the court was of 
opinion that the defendant might demur both to 
the discovery sought and the relief prayed by a 
bill, it was held that to so much of the bill as 
sought to perpetuate the testimony of witnesses 
the defendant could not demur(6). But if the 
case made by the bill appears to be such on which 

the jurisdiction of the court does not arise, 
[*150] as if the matter to which the required *tes- 

timony is alleged to relate can be immedi- 
ately investigated in a court of law, and the wit- 
nesses are resident in England, a demurrer will 
hold(c) (2). Still, however, where from circum- 
stances, or the age and infirmity of witnesses, or 
their intention of leaving the kingdom, it has been 
probable that the plaintiflf would lose the benefit 
of their testimony, though he should proceed with 

(a) 1 Atk. 451. 571 ; IP. Wms. (6) Earl of Suffolk v. Green, 1 

117; Tirrell \. Co, I Ro\. Ah. 383; Atk. 450. See Thorpe v. Macau- 

Mendaz v. Barnard, 16 May, 1735, l^y, 5 Madd. 218; Shakell v. Mi- 

on demurrer ; Lord Dursleyv. Fitz- caulay, 2 Sim. & Stu. 79. 

hardinge, 6 Ves. Jr. 251 to 266. (c) Lord North v. Lord Gray, 

See however. The Earl of Belfast Dick. 14. 1 Sim. & Stu. 89. 
V. Chichester, 2 Jac. & W. 439(1). 

(1) A bill to perpetuate testimony, to lands of which the complain- 
ants were out of possession, has been dismissed on demurrer. Smilhv. 
Ballard, 2 Hayward's (North Carolina) R. 289. 

(2) See the form of such a demurrer. Willis, 445. Also the form 
of a bill to perpetuate testimony. lb.2\\. And, the affidavit, Har' 
riiori's Pract. (Newl. ed.) 407. Look also at page 51. anU. 



DEMURRERS. 207 

due diligence at law, the court has sustained a 
bill for their exainination(<Z) ; and to avoid a de- 
murrer in this case it seems necessary to annex to 
the bill an affidavit of the circumstance by means 
of which the testimony may probably be lost(e). 
A bill for the examination of a single witness has 
been permitted where his evidence was of the ut- 
most importance, and he was the only witness to the 
point, apparently upon the single ground, that as 
he was the only witness there was danger of los- 
ing all evidence of the matter before it could be 
given in a court of law : but in this case an affida- 
vit of the witness was annexed to the bill(^). 
The principle on which it is required in these 
cases to annex to the bill an affidavit of the cir- 
cumstance which renders the examination 
of witnesses proper *in a court of equity, [*151] 
though the matter is capable of being 
made immediately the subject of a suit at law, 
seems to be the same as that on which the prac- 
tice of annexing an affidavit of the loss or want of 
an instrument, to a bill seeking to obtain in a 
court of equity the mere legal effect of the instru- 
ment, is founded, namely, that the bill tends to 
alter the ordinary course of the administration of 
justice, which ought not to be permitted upon the 
bare allegation of a plaintiff in his bill.(2). 

(d) As to the examination of wit- Corbett, 1 Ves. & B. 335; Atkins v. 

nesses under sueh circumstances, de Palmer, 5 Madd. 19 ; Dew v. Clarke, 

bene tsse, see Shirley v. Earl Fer- 1 Sim. & Stu. 108. 

rers, 3 P. Wnis. 77; Palmer v. Lord (e) Phillips v. Carew, 1 P. W^ms. 

Aylesbury, 15 Ves. 176 ; Andrews \. 117. 1 Ves. & B. 23(1). 

Palmer, 1 Ves. & B. 21 ; Corbett v. (/) Shirley v. EarL Ferrers, 4tb 



(1) Laight V. Morgan, 2 C. C. E. 344 ; S. C. 1 J. C. 429. 

(2) Laight v. Morgan, 2 C. C. E. 344. 



208 DEMURRERS. 

II. It has been before noticed, that the establish-'' 
ment of courts of equity has obtained throughout 
the whole system of our judicial polity ; and that 
most of the inferior branches of that system have 
their peculiar courts of equity, the court of chancery 
assuming a general jurisdiction in cases not within 
the bounds, or beyond the powers of inferior juris- 
dictions. The principle of the inferior jurisdictions 
in England are those of the counties palatine of 
Chester, Lancaster, and Durham, the courts of 
great session in Wales, the courts of the two uni- 
versities of Oxford and Cambridge, the courts of 
the city of London and of the Cinque-ports(^). 
These are necessarily bounded by the locality 
either of the subject of the suit or of the residence 
of the parties litigant. Where those circumstances 
occur which give them jurisdiction they have ex- 
clusive jurisdiction in matters of equity as 

well as matters of law; and they have 
[*152] *their own peculiar courts of appeal, the 

court of chancery assuming no jurisdiction 
of that nature, though it will in some cases remove 
a suit before the decision into the chancery by 
writ of certiorari. When therefore it appears on 
the face of a bill that another court of equity has 
the proper jurisdiction, either immediately, or by 
way of appeal, the defendant may demur to the 
jurisdiction of the court of chancery. Thus to a 
bill of appeal and review of a decree in the court 
of the county palatine of Lancaster the defend- 

seal after Trin. Term, 1730, MS. N. court of equity, does not seem to give 

3 P. Wms. 77. M. 1730, 8 Ves. 32. to any person the privilege of being 

See above, p. 52, note {z). sued there. 
(ff) The court of exchequer, as a 



DEMURRERS. 209 

ant demurred, because on the face of the bill it was 
apparent that the court of chancery had no juris- 
diction ; and the demurrer was allowed(7i). But 
demurrers of this kind are very rare ; for the want 
of jurisdiction can hardly appear upon the face of 
the bill, at least so conclusively as is necessary(i) 
to deprive the chancery, a court of general jurisdic- 
tion, of cognizance of the suit ; and a demurrer 
for want of jurisdiction founded on locality of 
the subject of the suit, which alone can exclude the 
jurisdiction of the chancery in a matter cognizable 
in a court of equity, has even been treated as in- 
formal and improper(fc). This, however, can only 
be considered as referring to cases where circum- 
stances may give the chancery jurisdiction, and 
not to cases where no circumstance can have 
that effect. Thus the counties palatine having 
their peculiar and exclusive courts of equity under 
certain circumstances, which will be 
*more fully considered in another place(/), [*153] 
the court of chancery will not interfere 
when all those circumstances attend the case, and 
they are shown to the court ; though if those cir- 
cumstances are not shown, or if they are not shown 
in proper time, and the defendant, instead of rest-* 
ing upon them and declining the jurisdiction, 
enters into the defence at large, the court, having 
general jurisdiction, will exercise it. But where 
no circumstance can give the chancery jurisdic- 
tion, as in the case alluded to of a bill of appeal 

(Ji) Jennet v. Bishopp, 1 Vern. Atk. 543. 
184. (Z) See pleas to the jurisdiction of 

(i) See 1 Vcs. 203, 204. the court of chancery. 

(k) See Roberdeau v. Rous, 1 

27 



210 DEMURRERS. 

and review of a decree in a county palatine, it wilt 
not entertain the suit, even though the defend- 
ant does not object to its deciding on the subject. 

III. If a plaintiff is not entitled to sue by rea- 
son of any personal disability(?w), which is appa- 
rent in the bill, the defendant may demur. There- 
fore, if an infant, or a married woman, an idiot or 
a lunatic, exhibiting a bill, appear upon the face of 
it to be thus incapable of instituting a suit alone, 
and no next friend or committee is named in the 
bill, the defendant may demur(l); but if the in- 
capacity does not appear upon the face of the bill 
the defendant must take advantage of it by plea. 
This objection extends to the whole bill, and ad- 
vantage may be taken of it as well in the case of 
a bill for discovery merely as in the case of a bill 
for relief For the defendant in a bill for a disco- 
very merely, being always entitled to costs after 
a full answer as a matter of course, would be ma- 

' terially injured by being compelled to 
[*154] ^answer a bill exhibited by persons whose 
property is not in their own disposal, and 
who are therefore incapable of paying the costs. 

IV. Interest in the subject of the suit, or a right 
in the thing demanded, and a proper title to insti- 
tute a suit concerning it, are essentially necessary 
to sustain a bill; and if they are not fully shown 
by the bill itself the defendant may demur(n)(2). 

(m) See IVartnaby v. Wartnaby, Darthez v. Winter, 2 Sim. & StU;- 
1 Jac. R. 377. 536. 

(n) See 2 Sch. & Lefr. 638. 

(1) See the form of a demurrer. Willis, 449. 

(2) If, of several complainants, some have an interest in the matter 
of the suit and others have no interest in it, but are merely the agents 



DEMURRERS. 211 

Therefore, where a protestant next of kin claimed 
a rent-charge settled on a papist on her marriage, 
a demurrer was allowed(w), for the plaintiff had 
evidently no right to the thing which he demand- 
ed by his bill, the papist being incapable of taking 
by purchase, and the grant of the rent-charge be- 
ing therefore utterly void. And where a plaintiff 
claimed under a will, and it was apparent upon the 
construction of the will that he had no title, a de- 
murrer was allowed(o) (1). But in this case it 
was said, that if upon arguing the demurrer the 
court had not been satisfied, and had been there- 
fore desirous that the matter should be more fully 
debated at a deliberate hearing(p), the demurrer 
would have been overruled without prejudice 
to the defendant's insisting on the same 
*matter by way of answer(^), which in- [*155] 
deed it should seem may in all cases be 
done without the special declaration of the court, 
that the overruling of the demurrer shall be with- 
out prejudice. 

Though the plaintiff in a bill may have an inte- 
rest in the subject, yet if he has not a proper title 
to institute a suit concerning it, a demurrer will 

(n) See Michaux v. Grove, 2 Atk. tion of a will may be as deliberately 

210. deteriuined upon argument of a de- 

(o) Brownsword v. Edwards, 2 murrer as at the hearing of a cause 

Ves. 243. See also Beech v. Crull, in the ordinary course ; and the dif- 

Prec. in Chan. 589 ; Parker v. ference in expense to the parties may 

Fearrdey, 2 Sim. & Stu. 592. be considerable. See above, p. 108, 

(p) Perhaps this declaration fell note (n). 
from the court rather incautiously ; (g) 2 Ves. 247. 
as a dry question upon the construc- 

of their co-plaintiffs, a general demurrer to the whole bill is a good 
defence. King of Spain v. JMachado, 4 Russ. 225 ; and see C^ff" 
V. Platett, lb. 242 ; Clarkson v. De Peyster, 3 Paige's C. R. 339. 
(1) See the form of such a demurrer. Willis, 154. 



212 DEMURRERS. 

hold(r). Therefore, where persons who had ob- 
tained letters of administration of the estate of an 
intestate in a foreign court, on that ground filed a 
bill seeking an account of the estate, a demurrer 
was allovved(5), because the plaintiffs did not show 
by their bill a complete title to institute a suit 
concerning the subject ; for though they might 
have a right to administration in the proper ec" 
clesiastical court in England, and might therefore 
really have an interest in the thing demanded by 
their bill, yet not showing that they had obtained 
such administration, they did not show a complete 
title to institute their suit. And where an execu- 
tor does not appear by his bill to have proved the 
will of his testator, or appears to have proved it in 
an improper(^) or insufiicient(2^) court, as he does 
not show a complete title to sue as executor, a 
demurrer will hold(l). 

Want of interest in the subject of a suit, or of a 
title to institute it, are objections to a bill seeking 

any kind of relief, or filed for the purpose 
[*156] of ^discovery merely. Thus, though there 

are few cases in which a man is not enti- 
tled to perpetuate the testimony of witnesses, yet 
if upon the face of the bill the plaintiff appears to 
have no certain right to or interest in the matter 

(r) It seems the plaintiff must dis- (s) Tourton v. Flcncer, 3 P. Wms. 

tinctly show a title in equity ; ftr, 369. 

where one stated a title either at law {t) 3 P. Wms. 371. 

or in equity a demurrer was allowed. (w) Comber^ Case, 1 P. Wms. 

Edwards \. Eduards, 1 Jac. R. 766. 
335. 

(1) 2 Hayward, 157. S. P. as to an administrator. J\Jacnamara 
V, Sweelman, 1 Hogan, 29. And see the form of a demurrer in such 
ji case, 2 Equity Draft. 84. 



DEMURRERS. 213 

to which he craves leave to examine, in present or 
in future(a:), a demurrer will hold. Therefore, 
where a person claiming as devisee in the will of 
a person living, hut a lunatic, brought a bill to 
perpetuate the testimony of witnesses to the will 
against the presumptive heir at law(i/) ; and where 
persons who would have been entitled to the per- 
sonal estate of a lunatic if he had been then dead 
intestate, as his next of kin, supposing him legiti- 
mate, brought a bill, in the lifetime of the luna- 
tic, to perpetuate the testimony of witnesses to his 
legitimacy, against the attorney general as sup- 
porting the rights of the crown(2;), demurrers 
were allowed. For the parties in these cases had 
no interest which could be the subject of a suit ; 
they sustained no character under which they 
could afterwards use the depositions(«), and there- 
fore the depositions, if taken, would have been 
wholly nugatory. 

So in every case where the plaintiff in a bill 
shows only the probability of a future title 
upon an event *which may never happen, [*157] 
he has no right to institute any suit con- 
cerning it ; and a demurrer will hold to any kind 

(x) Smith V. Att. Gen. in Chan, there is the form of a (]emurrer(l). 
Mich. 1777. C Ves. 260. Allan v. (z) Smith v. Att. Gen. in Chan, 

^«an, 15 Ves. 130. Mich. 1777; 6 Ves. 256. 260; 15 

(y) Sackvill v. Ayleworth, I Vern. Ves. 133. 136. 
105; 1 Eq. Ca. Ab. 234; Smith v. (a) See 2 Prax. Aim. Cur. Can. 

PTafson, in Chan. 20 June, 1760. 2 501; and see The Earl of Belfast 

Prax. Aim. Cur. Cane. 500, where v. Chichester, 2 Jac. & W. 439. 



(1) See a better form, note (6), Willis, 452. Also a precedent, in 
2 Equity Draft. 85. 



214 DEMURRERS. 

of bill on that ground, which will extend to any 
discovery as well as to relief(6). 

If the claim of the plaintiff is of a matter in itselt 
unlawful, as of money promised to a counsellor at 
law for advice and pains in carrying on a suit(c) ; 
or of money bequeathed by a will to purchase a 
dukedom(rf) ; the defendant may demur to the bill, 
for the plaintiff not having a lawful claim has no 
title to sue in a court of justice. 

There are grounds of demurrer to a bill for a 
discovery merely as well as to a bill for relief. 
But if a plaintiff shows a complete title, though a 
litigated one, or one that may be litigated, as that 
of an administrator, where a suit is depending to 
revoke the administration(c) ; or of an administra- 
tor where there may be another personal repre- 
sentative(y ) ; a demurrer will not hold, at least to 
discovery. For in the first case, till the litigation 
is determined the plaintiff's title is good, and in the 
second case, the court will not consider the eccle- 
siastical court as having done wrong. And where 
a doubtful title only is shown it is necessarily suf- 
ficient to support a bill seeking the assistance ot 
the court to preserve property in dispute 
[*158] pending a litigation. Therefore where *a 
suit was pending in an ecclesiastical court 
touching the representation to a person deceased, 
a demurrer of one of the parties to that suit, who 
had possessed the personal estate of the deceased, 

(6) Sackvill v. Ayleworth, Vern. Roue, 1 Rep. in Cha. 38. 2 Atk. 
105. 1 Eq. Ca. Ab. 234. Smith v. 332. 
Att. Gen. Mich. 1777. (d) Earl of Kingston v. Lady 

(c) Penrice v. Parker, Rep. Pierepont, 1 Vern. 5. 
Tpra. Finch. 75; and see Moor v. (e) Wright \. Blicke, ihii. 106. 
(/) 3 P. Wms. 370. 



DEMURRERS. 215 

to a bill for an account filed by the other party, 
was overruled(^). The ground of this decision 
seems to have been the deficient powers of the ec- 
clesiastical court for securing the effects whilst 
the suit there was depending; and the doubt as to 
the title of the parties was the very ground of the 
application to the court. 

V. A plaintiff may have an interest in the subject 
of his suit, and a right to institute a suit concern- 
ing it, and yet may have no right to call on a de- 
fendant to answer his demand. This may be for 
want of privity between the plaintiff and the de- 
fendant. Thus, though an unsatisfied legatee has 
an interest in the estate of his testator, and a right 
to have it applied to answer his demands in a due 
course of administration, yet he has no right to in- 
stitute a suit against the debtors to his testator's 
estate for the purpose of compelling them to pay 
their debts in satisfaction of his legacy(^)(l). For 
there is no privity between the legatee and the 
debtors, who are answerable only to the personal 
representative of the testator ; unless by collusion 
between the representative and the debtors, 
*or other collateral circumstance, a dis- [*159] 
tinct ground is given for a bill by the le- 
gatee against the debtors(£). So a bill filed by the 

(g) Phipps V. steward, 1 Atk. March, 1736, Rolls. 12 Nov. 1737. 

286. And see Andrews v. Powys, Lord Chan, on Appeal, cited Bar- 

2 Brown, P. C. 504, Toml. ed. See nard. 32, & 6 Ves, 741). Monk v. 

also Wills V. Rich, 2 Atk. 285, and Pom/ret, cited ibid. Alsagcr v. 

Morgan v. Harris, 31 Oct. 1786. Roidey, 6 Ves. 748, and the cases 

Demurrer overruled. 2 Bro. C. C. there cited and referred to. 9 Ves; 

121. 86. 

(A) Bickly V. Dorrington, 10 (i) 3 Madd. 159. 

(I) See the form of a demurrer in such a case. Willis, 456 ; and 
Bote (a) there. 



216 DEMURRERS- 

creditors of a person who was one of the residuary 
legatees of a testator, against the executors of the 
testator, the other residuary legatees, and the exe- 
cutrix of their debtor, was dismissed(2). 

But where an agent has been employed, his 
principal has in many cases a right to a discovery 
of his transactions, and to demand the property 
with which he has been intrusted, or the value of 
it, against those with whom the agent has had deal- 
ings; and therefore, where a merchant who had 
employed a factor to sell his good;^ filed a bill 
against the persons to whom the goods had been 
sold, for an account, and t^ be paid the money for 
which the goods had been sold, and which had not 
been paid to the factor, a demurrer was over- 
ruled(A;). So where a merchant acting upon a 
commission del credere became bankrupt, having 
sold goods of his principals for which he had not 
paid them, and shortly before his bankruptcy drew 
bills on the vendees, which he delivered to some of 
his creditors to discharge their demands, they know- 
ing his insolvency, a suit by the principals was 
maintained against the persons who had received 
the bills, for an account and payment of 
[*160] the produce. But the *book-keeper of the 
bankrupt having been made a party, as 
one of the persons to whom bills had been so deli- 
vered, and having denied that fact by his answer, 
he was not compelled to answer to the rest of the 
bill, which, independent of that fact, was as to him, 
a mere bill for discovery of evidence(/). 

ft) Elmslie V. M'Aulay, 3 Bro. C. Bro. C. C. 270. 
C. 624. And see Utterson v. Mair, (k) Lisset v. Reave, 2 Atk. 394. 
Vernon and others, on demurrer, 10 (Z) Neuman v. Godfrey, 2 Bro. C. 

April, 1793. 2Ves.Jr. 95. S. C. 4 C. 332. 2 Ves. Jr. 457. See Att. 



DEMURRERS. 



217 



VI. The plaintiff must by his bill show some 
claim of interest in the defendant in the subject of 
the suit(m), which can make him liable to the 
plaintiff's demands, or the defendant may de- 
mur(n). Therefore, if a bill is filed to have the 
benefit of or to impeach an award, and the arbi- 
trators are made parties, they may demur to the 
whole bill, as well to discovery as relief(<>)(l); for 
the plaintiff can have no decree against 
*them, nor can he read their answer [*161] 
against the other defendants. Indeed, 
where an award has been impeached on the 
ground of gross misconduct in the arbitrators, and 
they have been made parties to the suit, the court 
has gone so far as to order them to pay the costs, 
{^p) ; and probably, therefore, in such a case a de- 
murrer to the bill would not have been allowed. 
A bankrupt made party to a bill against his as- 
signees touching his estate may demur to the re- 
lief, all his interest being transferred to his as- 

Geri. v. Skinners Comp. 5 Madd. Margravine of Anspach, 15 Ves. 

173, particularly at p. 294. But see 159 f Bowles v. Stewart, 1 Sch. & 

Cookson\. Ellison, 2 BTo.C.C.2b2, Lefr. 209, ib. 227. 1 Meriv. 123: 

and the other subsequent cases on the And, this observation of course ap- 

necessity of answering fully. See plies more strongly where the parties 

below, chap. 2, sect. 2. part 3. may be interested, but cannot other- 

(Tn.) See Dowlin v. Macdougall, 1 wise be made defendants for want of 

Sim. & Stu. 367. privily. See 3 Barnard. 32. Doran 

{n) 2 Eq. Ca. Ab. 78. There are, v. Simpson, 4 Ves. 651. 6 Ves. 750. 

however, instances in which persons 9 Ves. 86. Salvidge v. Hyde, 5 

not interested in the subject of dis- Madd. 138. S. C. 1 Jac. R. 151. 
pute, may by their conduct so involve (o) Steward v. E. I. Comp. 2 

themselves in the transaction relating Vern. 380. See 14 Ves. 254. Good- 

to it, that they may be held liable to tnan v. Sayers, 2 Jac. & W. 249. 
costs ; and under such circumstances (p) Lingood v. Crouclier, 2 Atk. 

it seetns they cannot demur to the 395; Chicot v. Lequcsnc,''2 Yes. 2\b, 

bill, if the fraudulent or improper and the case of Ward v. Periam^ 

conduct be charged, and the cost? be cited ib. 316. 1 Turn. R. 131, note, 

prayed against them. See 7 Ves. Lord Lonsdale v. Littledale, 2 Ves. 

288. 14 Ves. 252. Le Texier v. Jr. 451. 14 Ves. 252. 



(0 See the form of such a demurrer. Willis, 458^ 

28 



^IB DEMURRERS. 

signees(^) : but it seems to have been generally 
understood, that if any discovery is sought of his 
acts before he became a bankrupt, he must answer 
to that part of the bill for the sake of discovery, 
and to assist the plaintiff in obtaining proof, 
though his answer cannot be read against his as- 
signees ; and otherwise the bankruptcy might en- 
tirely defeat justice(r). Upon the same principle 
it seems also to have been considered, that where 
a person having had an interest in the subject of a 
bill has assigned that interest, he may yet be com- 
pelled to answer with respect to his own acts be- 
fore the assignment. 

It is difficult to draw a precise line be- 
[*162] tweenthe *cases in which a person having 
no interest may be called upon to answer 
for his own acts, and those in which he may demur, 
because he has no interest in the question. Thus, 
where a creditor who had obtained execution 
against the effects of his debtor filed a bill against 
the debtor, against whom a commission of bankrupt 
had issued, and the persons claiming as assignees 
under the commission, charging that the commis- 
sion was a contrivance to defeat the plaintiff's ex- 
ecution, and that the debtor having by permission 
ofthe plaintiff possessed part of the goods taken in 
execution for the purpose of sale, and instead of 
paying the produce to the plaintiff had paid it to 

(g) Whiticorth v. Davis, 1 Ves. & him, he could not demur, ib. and 15 

Bea. 545. S. C. 2 Rose, B. C. 116. Ves. 164. See also Kiiig v. Martin, 

Bailey v. Vincent, 5 Madd. 48. 2 Ves. Jr. 641. 

lAoyd ▼. Lander, 5 Madd. 282: (1) (r) Upon this passage, see 1 Ves. 

but, it seems, that if fraud were & Bea. 548, 549, 550. 
charged and costs were prayed against 

(1) And see Willis on Pleading, note (b), p. 458. 



DEMURRERS. 219 

his assignees, a demurrer by the alleged bankrupt, , 
because he had no interest, and might be examined . ,^ 
as a witness, was overruled, and the decision af- ^^^.^ 
firmed on rehear ing(5). A difference has also been Ctr-'-^ 
taken where a person concerned in a transaction % ^/-4 - 
impeached on the ground of fraud has been made 
party to a bill for discovery merely(<) ; or as hav- 
ing the custody of an instrument for the mutual 
benefit of others(M). 

To prevent a demurrer a bill must in many cases 
not only show that the defendant has an interest 
in the subject, but that he is liable to the 
plaintiff's demands(a:). *As where a bill [*163] 
was brought upon a ground of equity by 
the obligee in a bond against the heir of the obligor, 
alleging that the heir having assets by descent 
ought to satisfy the bond ; because the bill did not 
expressly allege that the heir was bound in the 
bond, although it did allege that the heir ought 
to pay the debt, a demurrer was allowed(2/)(l). 
So where a bill was brought by a lessor against an 
assignee touching a breach of covenant in a lease, 
and the covenant, as stated in the bill, appeared to 
be collateral, and not running with the land, did 
not therefore bind assigns, and was not stated by 
the bill expressly to bind assigns, the assignee de- 
murred, and the demurrer was allowed(2;). 

(s) Kin^ V. Martin and others, 25 fraudulent. 
July, 171J5, rep. 2 Ves. Jr. 641. (u) 3 Atk. 701. 

(t) Cotton V. Luttrell, Trin. 1738. (x) See Byves ▼. Ryves, 3 Ves. 

Bennet v. Vadc, 2 Atk. 324. See 343. 

above, p. 160, note (?i). See also (y) Crosseing v. Honor, 1 Vern. 

Bridgman v. Green, 2 Ves. 627. 180. 

629, as to the evidence of a person {z) Lord Uxbridge v. Staveland, 

charged as particeps criininis, in sup- 1 Ves. 56. 
port of a transaction impeached as 

(1) See the form of such a demurrer. Willis, 460. 



220 



DEMURRERS. 



VII. If for any reason founded on the sub- 
stance of the case as stated in the bill the plaintiff 
is not entitled to the relief he prays, the defendant 
may demur. Many of the grounds of demurrer 
already mentioned are perhaps referable to this 
head ; and in every instance, if the case stated is 
such that admitting the whole bill to be true, the 
court ought not to give the plaintiff the relief or 
assistance he requires in the whole or in part, the 
defect thus appearing on the face of the bill is suf- 
ficient ground of demurrer(a) (1). 

VIII. It is the constant aim of a court of equi- 
ty to do complete justice by deciding upon 

[*164] and settling *the rights of all persons in- 
terested in the subject of the suit, to make 
the performance of the order of the court perfectly 
safe to those who are compelled to obey it, and to' 
prevent future litigation(6). For this purpose all 
persons materially interested in the subject ought 
generally to be parties to the suit, plaintiffs or de- 
fendants, however numerous they may be, so that 
the court may be enabled to do complete justice, 
by deciding upon and settling the rights of all 
persons interested, and that the orders of th*^ 
court may be safely executed by those who are 

(a) 7 Ves. 245. 2 Sch. & Lefr. Wms. 331. But see also CuUen v. 
638. 6 Madd. 95. Duke of q,ueensberTy, \ Bro. C. C. 

(6) See Knight v. Knight, 3 P. 101. 



(1) A demurrer for want of equity cannot be sustained, unless the 
court is satisfied that no discovery or proof properly called for by or 
founded upon the allegations in the bill, can make the subject matter of 
the suit a proper case for equitable cognizance. Bleeker v. Bingham, 
3 Paige's C. R. 246. See the form of a general demurrer for want of 
equity. Willi', 461. 



DEMURRERS. 221 

compelled to obey them, and future litigations 
may be prevented(c)(l)(2). 

This general rule, however, admits of many 
qualifications. When a person who ought to be 
a party is out of the jurisdiction of the court, that 
fact being stated in the bill, and admitted by the 
defendants, or proved at the hearing, is in most 
cases a sufficient reason for not bringing him be- 
fore the court ; and the court will proceed with- 
out him against the other parties, as far as cir- 
cumstances will permit(^). It is usual, however, 
to add the name of a person out of the jurisdiction 
of the court as a party to the bill, so far as may 
be necessary to connect his case with that 
of *the other parties; and the bill may al- [*165] 
so pray process against him in case he 
should become amenable to such process; and it 
in fact he should become so amenable pending the 

(c) 3 P. Wms. 333, 334. 2 Atk. went v. Walton, 2 Atk. 510. Wil- 

51. 7 Ves. 563. 12 Yes. 53. 1 Hams v. Whinyates, 2 Bro. C. C. 

Meriv. 262. Beaumont \. Meredith, 399 ;(3) and, if the disposition of the 

3 Ves. & Bea. 182. 1 Sch. & Lefr. property be in the power of the other 

298. parties, the court, it seems, will act 

(rf) 1 Ves. 385 ; and see Cowslad upon it. 1 Sch. & Lefr. 240. 
V. Cely, Prec. in Chan. 83. Dar- 



(1) Wendell v. Van Rensselaer, 1 J. C. R. 349 ; Wilson v. Hamil- 
ton, on appeal, 9 J. R. 442 ; Haines v. Beach, 3 J. C R. 459 ; Ens- 
worth V. Lambert, 4 lb. 605 ; Trescott v. Smith, 1 J\P Cord's Chan. R. 
301 ; Johnson v. Rankin, 2 Bibb. 184 ; J^ewman v. Kendal, 2 Marsh. 
234 ; Pope v. Melone, lb. 240 ; Hoy v. M-Jlurdy, 1 Lilt. 370 ; Whe- 
lan V. Whelan, 3 Cowen, 537 ; Fellows v. Fellows, 4 lb. 682 ; Colt v. 
Latnier, 9 lb. 320 ; Edwards on Parties, 1, 2, 3. 

(2) Althoug-h all persons interested must be made parties to bills for 
relief, jet this is not necessary as to bills for discovery. Trescott v. 
Smith, 1 jM-Cord's Chan. R. 3o\. But see Plunket v. Penson,2 
Atk. 51. 

(3) Milligan v. JHilledge, 3 Crunch, 220; Lavihart v. Reilly, 3 
Pesau. 590. 



222 



j DEMURRERS. 



suit he ought to be brought before the court, either 
by issuing process against him, if process should 
have been prayed against him, and if not, by 
amending the bill for that purpose, if the state of 
the proceedings will admit of such amendment, or 
by supplemental bill if they will not(c). If a per- 
son so out of the power of the court is required to 
be an active party in the execution of its decree, 
as where a conveyance by him is necessary, or if 
the decree ought to be pursued against him, as the 
foreclosure of a mortgagee against the original 
mortgagor, or his representative or assign, the 
proceedings will unavoidably be to this extent de- 
fecUve(f). A foreign corporation not amenable 
to the jurisdiction of the court falls within this de- 
scription, and a corporation in Scotland is consi- 
dered for this purpose as a foreign corporation(^). 
When the object of a suit is to charge the per- 
gonal property of a deceased person with a demand, 
ic.,t,^'^^^r::> ■ it is generally sufficient to bring before the court 
T///^jJl the person constituted by law to represent that 
L , J. r''^ property, and to answer all demands upon it(l); 
'[2. ^' ' ' '''^ and the difficulty of bringing before the court, in 
i '^'\/; .. some cases, all the persons interested in 

[*166] the subject of a suit, has also ^induced the 
5^>y'^<' <//♦/ court to depart from the general rule(^), 

(e) See Haddock v. Thomb'nson, (A) Prec. in Chan. 592. Pearson 

2 Sim. & Stu. 219. v. Belchier, 4 Vcs. G27 ; Lloyd v. 

(/) rell V. Brotcn, 2 Bro. C. C. Loaring, 6 Ves. 773; 11 Ves. 367; 

277 ; see above, p. 32. Adair v. New River Comp. 11 Ves. 

(g) Att. Gen. v. Baliol, Coll. in 429 ; Cockburn v. Thompson, 16 

Cha. 10 Dec. 1744. Lord Hard- Ves. 321 ; Beaumont v. Meredith, 3 

wicke, as to the University of Glas- Ves. & Bea. 180; Meux v. Maltby, 

gow. 2 Swanst, 277, and cases there cited ; 



2 ]^ jf Vj (1) Wlier v. Blachly, 1 J. C. R. 437; Brown v. Ricketts, 3 lb. 

' ' ■ 553 ; Coll V. Lasnier, 9 Coroen's R. 320. 



DEMURRERS. 223 

where the suit is on behalf of many in the same 
interest, and all the persons answering that de- 
scription cannot easily be discovered or ascertain- 
ed. Thus a few creditors may substantiate a V 
suit on behalf of themselves and the other credi- 
tors of their deceased debtor, for an account and 
application of his assets, real as well as personal, 
in payment of their demands(«); and the decree 
being in that case applied to all the creditors, the 
other creditors may come in under it, and obtain 
satisfaction of their demands equally with the 
plaintiffs in the suit ; and if they decline to do 
so they will be excluded the benefit of the decree, 
and will yet be considered as bound by acts done 
under its authority(A;). As a single creditor may 

and see below, 170, notes (w) and (:r). (i) 2 Ves. 313. Lmc v. Righy, 4 

Ellison V. Bignold, 2 Jac. & W. Bro. C. C. 60(1). 

503 ; Manning v. T/iesiger, 1 Sim. (k) See Good v. Blewitt, 19 Ves. 

& Stu. 106: Gray v. Chaplin, 2 Sim. 336, and Angell v. Haddon, 1 Madd. 

& Stu. 267. R. 529;^2). 



(1) Hendricks v. Robinson, 2 J. C. R. 283; Brown v. Rickells, 3 
16.553; Brinkcrhojjf'v. Brown,6 lb. 139; see tlie last case considered 
in Fellows v. Fellows, 4 Cowen's R. 682 ; and see Fish v. Howland, 1 
Paige's C. R. 20 ; Egberts v. Wood, 3 Paige's C. R. 517; Burney v. 
Morgan, I S. 6f S. 358. 

(2) And see JVcue v. Weston, 3 Jitk. 557 ; Young v. Everest, 1 Russ. 
Ss M. 426 ; Shubrick v. Shubrick, 1 M^ Cord's C. R. 407. To enable 
a creditor to come in under a decree and prove a claim wliich is not 
stated or referred to iu the pleadings or proofs in the cause, he should 
present the particulars of his claim to the master, accompanied by his 
affidavit in support thereof. In this affidavit, the claimant must swear 
either positively or according to his information and belief, that the 
amount claimed is justly due as set forth in the particular of his claim, 
and that neither the claimant nor any person by his order or to his 
knowledge or belief for his use hath received the amount thus claimed 
or any part thereof or any security or satisfaction whatsoever for the 
same or any part thereof. Per Chancellor Walworth, in Morris v. 
Mowitt, MS. 16 July, 1833 ; and see Rule 105, JV. Y. Chancery, 






;/■ 



324 



DEMURRERSd 



sue for his demand out of personal assets, it is 
rather matter of convenience than of indulgence 
to permit such a suit by a few on behalf of all the 
creditors ; and it tends to prevent several suits by 
several creditors, which might be highly inconve- 
nient in the administration of assets, as well as 
burthensome on the fund to be administered; for 
if a bill be brought by a single creditor for 
[*167] his own debt,* he may as at law gain a pre- 
ference by the judgment in his favor over 
other creditors in the same degree, who may not 
have used equal di]igence(Z). 

But some of a number of creditors, parties to a 
trust-deed for payment of debts, have been permit- 
ted to sue on behalf of themselves and the other 
creditors named in the deed for execution of the 
trust(7/i), although one of those creditors could not 
in that case have sued for his single demand with- 
out bringing the other creditors before the court. 
This seems to have been permitted purely to save 
expense and delay. If a great number of creditors, 
thus specially provided for by a deed of trust, were 
to be made plaintiffs, the suit would be liable to 
the hazard of frequent abatements ; and if many 
were made defendants the same inconvenience 
might happen, and additional expense would una- 
voidably be incurred. 

(Z) See Att. Gen. v. Cornthwaite, (m) Corry against Trist, 1 Dec. 

2 Cox, R. 44 I an instance of a bill 1766; Routh v. Kinder, 3 Swanst. 

by a single creditor(l). And see 144, n ; Boddy v. Kent, 1 Meriv. 

Haycock v. Haycock, 2 Ca. in Cha. 361 ; Weld v. Bonham, 2 Sim. and 

124 ; Bedford v. Leigh, Dick. 707 ; Stu. 91 ; Hayidford v. Storie, 2 Sim. 

Hall V. Binney, 6 Ves. 738. and Stu. 196. 

(1) And see Hendricks v. Robinson, 2 J. C. R. 283 ; Corning t,- 
White, 1 Paige's C. R. 567. 



DEMURRERS. 225 

By analogy to the case of creditors, a legatee is 
permitted to sue on belialf of himself and other lega- 
tees ; and as he might sue for his own legacy only, 
a suit by one on behalf of all the legatees has the 
same tendency to prevent inconvenience and ex- 
pense as a suit by one creditor on behalf of all cre- 
ditors of the same fund(m) ; but in a suit by 
a single legatee for *his own legacy, unless [*168] 
the personal representative of the testator, 
by admitting assets for payment of the legacy, 
warrants an immediate personal decree against him- 
self, by which he alone will be bound(w), the court 
will direct a general account of all the legacies of 
the same testator, and payment of the legacy 
claimed rateably only with the other legacies, no 
preference being allowed amongst legatees in the 
administration of assets(f>). 

When the court has pronounced a decree for an 
account and payment of debts or legacies under 
which all creditors or legatees may claim, it will re- 
strain subsequent proceedings by a separate credi- 
tor or legatee, either at law or in equity, as the just 

(m) 6 Ves. 779 ; and see Morse v. made parties; but on such a hill by 

Sadler, 1 Cox, R. 352(1). one of several residuary legatees, he 

{n) See Boys v. Ford, 4 Madd. 40. must in general bring before the 

(o) To a bill by a specific or pecu- court all the other persons interested 

niary legatee fiir payment, neither the in the residue, after satisfaction of the 

residuary legatees, (see 1 Vern. 261 ; creditors and the specific and pecu- 

Wainwright v. Waterman, 1 Ves. niary legatees. 2 Ca. in Cha. 124(1). 

Jr. 311 ; 1 Madd. R. 448,) nor gene- Parsons v. Neville, 3 Bro. C. 0.365* 

rally, (see 2 Ca. in Cha. 124; and 16 Ves. 328. And see 1 Sim. & Stu' 

see Morse v. Sadler, 1 Cox, R. 352,) 106. 
any other of the legatees, need be 



(1} Brown v. Rickeils, 3 J. C. R. 553 ; Fish v. Howland, 1 Paige's 
C. R. 20 ; Pritchard v. Hicks, lb. 270 ; Ross v. Crarij, lb. 4\6 ; Hal- 
lettv. HaneU,3 lb. 15. 

(2) Also /6. 228 ; West v. Randall, 2 Mason's R. 181; Pritchard 
T. Hicks, 1 Paige's C. R. 270. 

29 



226 DEMURRERS. 

administration of the assets would be greatly em- 
barrassed by such proceedings(p). 

Where all the inhabitants of a parish had rights 
of common under a trust, a suit by one on 
[*169] behalf of *himself and the other inhabitants 
was admitted(5'). It has been doubted 
whether the attorney general ought not to have 
been a party to that suit(r), and accordingly, on a 
bill filed by some of the sufferers by a fire against 
the trustees of a collection made for the sufferers 
generally, it was objected at the hearing, that the 
attorney general ought to have been a party, and 
that otherwise the decree would not be conclusive; 
and the cause was accordingly ordered to stand 
over for the purpose of bringing the attorney ge- 
neral before the court(5). But where a bill was 
brought for distribution of private contributions, 
the objection that the attorney general was not a 
party was overruled(/). 

For the application of personal estate amongst 
next of kin, or amongst persons claiming under a 
general description, as the relations of a testator 
or other person, where it may be uncertain who 
are all the persons answering that description, a 

(p) 1 Sch. & Lefr. 299, and eases (r) See Att. Gen. v. Moses, 2 

cited there, in note (6); and see Madd. R. 294. 

Douglas V. Clay, Dick. 393 ; Brooks (s) Overall v. Peacock, 6 Dec. 

▼. Reynolds, Dick. 603 ; S. C. 1 Bro. 1737. See Wellbeloved v. Jones, 1 

C. C. 183; Rush v. Higgs, 4 Ves. Sim. & Stu. 40. 

638 ; Paxton v. Douglas, 8 Ves. (t) Lee y. Carter, 17 Nov. 1740, 

520; Terrewest v. Featherby, 2 MS. N. reported 2 Atk. 84 ; but this 

Meriv. 480; Curre v. Bowyer, 3 point is not noticed by Atkyns. Kutt 

Madd. 456; Farrell\. Smith,2Bd.\\ \. Brown, 20 July, 1745; Anon 3 

& B. 337; 1 Jac. R. 122; Lord v. Atk. 227; 1 Sim. & Stu. 43. The 

Wormleighton, 1 Jac. R. 148. attorney or solicitor general is usually 

(9) 1 Ca. in Cha. 269. Blackham a necessary party to suits relating to 

against The Warden and Society 0/ charity funds. See Wellbeloved v. 

Sutton Coldjield. See Att. Gen. v. Jones, 1 Sim. & Stu. 40: and above, 

Heelis, 2 Sim. & Stu. 67. pp. 22. 99. 



DEMURRERS. 227 

bill has been admitted by one claimant on behalf 
of himself and the other persons equally enti- 
tled(M). And the necessity of the case has in- 
duced the court, especially of late years, fre- 
quently to depart from the general rule, 
* where a strict adherance to it would pro- [*170] 
bably amount to a denial of justice ; and 
to allow a few persons to sue on behalf of great 
numbers having the same interest(a:). 

There are also other cases in which the inte- 
rests of persons not parties to a suit may be in 
some degree affected, and yet the suit has been 
permitted to proceed without them, as a bill 

(u) See Ambl. 710 ; 1 Russ. R. & Stu. 106 ; Baldwin v. Lawrence, 

166(1). 2 Sim. & Stu. 18 ; Gray v. Chaplin, 

(x) Chancey v. May, Prec. in Cha. 2 Sim. & Stu. 267 ;(2) but it seems 

592 (Finch ed.); Gilb. 230; 1 Atk. that except, perhaps, in the common 

284 ; Leigh v. Thomas, 2 Ves. 312 ; cases of this kind, it is necessary to 

Pearson v. Belchier, 4 Ves. 627; allege that the parties are too nume- 

Lloyd V. Loaring, 6 Ves. 773 ; Good rous to be individually named. Weld 

V. Blewitt, 13 Ves. 397; Cockburn v. ^on/tam, 2 Sim. & Stu. 91. See, 

V. Thompson, 16 Ves. 321 ; 3 Meriv. however, Van Sandau v. Moore, 1 

510 ; Manning r. Thesiger, 1 Sim. Russ. R. 441(3). 



(1) But for the practice iu ordinary cases, see note (o), on the last 
page. 

(2) S. C. on appeal, 2 Russ. 126 ; Hallett v. Hallett, 2 Paige's C. 
R. 15. 

(3) Also Hichena r. Congreve, 1 Sim. 600; S. C. on appeal, 4 
Russ. 562 ; Wendell v. Van Rensselaer, 1 J. C. R. 349. And such 
bill may be filed by some, even Ihuugh the illiggal acts complained of 
may be sanctioned by the majority. Bromley v. Smith, 1 Sim. 8. 

Some of the members of a partnership cannot file a bill, on behalf 
of themselves and Ihe others for a dissolution of the partnership; but 
all the members, however numerous, must be parties to the suit. Long 
r. Yonge, 2 Sim. 369 ; and see J\lacmahon v. Upton, lb. 473. As 
where one of several partners received a mortgage in his own name 
for a partnership debt and afterwards brought a bill in his separate 
capacit}' to foreclose the equity of redemption — Held, on demurrer, 
that the other partners ought to have joined. J^oyes v. Sawyer, 3 
Vermont R. 160. 



^ 



228 DEMURRERS. 

brought by a lord of a manor against some of the 
tenants, or by some of the tenants against the 
lord, on a question of common ; or by a parson for 
tithes against some of the parishioners, or by some 
of the parishioners against the parson, to establish 
a general parochial modus(x). 

In many cases the expression that all persons 
interested in the subject must be parties to a suit, 
is not to be understood as extending to all 
[*171] persons who *may be consequentially in- 
terested. Thus, in the case of a bill which 
may be brought by a single creditor for satisfaction 
of his single demand out of the assets of a deceas- 
ed debtor, as before noticed(l), although the in- 
terest of every other unsatisfied creditor may be 
consequentially affected by the suit, yet that inte- 
rest is not deemed such as to require that the 
other creditors should be parties ; notwithstanding, 
the decree if fairly obtained will compel them to 
admit the demand ascertained under its authority 
as a just demand, to the extent allowed by the 
court in the administration of assets ; but they 
will not be bound by any account of the assets 
taken under such a decree. So in all cases of 
bills by creditors, or legatees, the persons entitled 
to the personal assets of a deceased debtor or tes- 
tator, after payment of the debts or legacies, are 

(x) 1 Atk. 283 ; 3 Atk. 247 ; dividuals representing a numeroua 

Chaytor v. Trin. Coll. Anst. 841 ; class, as against churchwardens re- 

ll.Ves. 444; and see Adair v. New presenting the parishioners in respect 

River Comp. 11 Ves. 4*29 ; 16 Ves. of a church-rate, it must be alleged 

328 -. 1 Jac. & W. 369 ; 2 Swanst- that the suit is brought against them 

282; but it appears that where it is in such representative character. 5 

attempted to proceed against some in- Madd. 13. 

(1) At page 166. 



DEMURRERS. 229 

not deemed necessary parties, though interested 
to contest the demands of the creditors and lega- 
tees; and, if the suits be fairly conducted, they 
will be bound to allow the demands admitted in 
those suits by the court, though they will not be 
bound by any account of the property taken in 
their absence(i/). 

To a bill to carry into execution the trusts of a 
will disposing of real estate by sale or charge of 
the estate, the heir at law of the testator is deemed 
a necessary party, that the title may be quieted 
against his demand; for which purpose 
the bill ^usually prays that the will may ['**^172] 
be established against him by the decree 
of the court ; but if the testator has made a prior 
will containing a different disposition of the same 
property, and which remains uncancelled, and has 
not been revoked except by tlie subsequent will, it 
has not been deemed necessary to make the per- 
sons claiming under the prior will parties; though 
if the subsequent will be not valid, those persons 
may disturb the title under it as well as the heir 
of the testator. If, however, the prior will is in- 
sisted upon as an effective instrument notwith- 
standing the subsequent will, the persons claiming 
under it may be brought before the court, to quiet 
the title, and protect those who may act under the 
orders of the court in executing the latter instru- 
ment(2;). » 

(y) See the case of Bedford v. Brown v. Dowthicaite, 1 Madd. R. 

Leigh, Dick. 707. And see Lawson 448. 

V. Barker, 1 Bro. C.C. 303; Wain- (z) See on the general subject, 

vrtght\. Waterman, 1 Ves. Jr.313 ; Harris v. Ingledew, 3 P. Wms. yi ; 



230 DEMURRERS. 

If no heir at law can be found, the king's attor- 
ney general is usually made a party to a bill for 
carrying the trusts of a devise of real estate into 
execution, supposing the escheat to be to the 
crown, if the will set up by the bill should be sub- 
ject to iinpeachment(«). But if any person should 
claim the escheat against the crown, that person 
may be a necessary party. 

If the heir at law of a testator who has devised 
a real estate on trusts should be out of the juris- 
diction of the court, and that fact should 
[*173] be charged *and proved, the court will 
proceed to direct the execution of the trusts 
upon full proof of the due execution of the will and 
sanity of the testator ; though that evidence can- 
not be read against the heir if he should afterwards 
dispute the will, and the court therefore cannot 
establish the will against him, or in any manner 
insure the title under it against his claims(6). 

Where real property in question is subject to an 
entail it is generally sufficient to make the first 
person in being, in whom an estate of inheritance 
is vested, a party with those claiming prior in- 
terests, omitting those who may claim in remain- 
der or reversion after such vested estate of inherit- 
ance(c) ; and a decree against the person having 

Lewis V. Naugle, 2 Ves. 431 ; 1 Ves. Baron, 2 Atk. 120 ; S. C. Dick. 138. 

Jr. 29(1). (c) 2 Sch. & Lefr. 210 ; and see 

(a) See the case o{ Alt. Gen. v. Anon. 2 Eq. Ca. Ab. 166; 2 Ves. 

Mayor of Bristol, 3 Madd. 319 ; S. 492; Pelhamv. Gregory, 1 Eden. 

C. 2 Jac. & W. 294. R. 518; S. C. 3 Bro. P. C. 204. 

(6) See Williams v. Whinyates, 2 ToDil. ed. 
Bro. C. C. 399 ; and see French v. 

(1) Aho Jackson V. Rad/ord, 4 Price, 21 A; Fordham v. Rolfe, 1 
Tamlym, C. R. 1 ; Wiser v. Blachly, 1 J. C. R. 437. 



DEMURRERS. 



231 



that estate of inheritance will bind those in remain- 
der or reversion, though by failure of all the pre- 
vious estates the estates then in remainder or re- 
version may afterwards vest in possession(rf). It 
has therefore been determined that a person so en- 
titled in remainder, and afterwards becoming en- 
titled in possession, may appeal from a decree 
made against a person having a prior estate of in- 
heritance, and cannot avoid the effect of the decree 
by a new bill(e). 

Contingent limitations and executory devises to 
persons not in being may in like manner be 
bound *by a decree against a person [*174] 
claiming a vested estate of inheritance ; but 
a person in being claiming under a limitation by 
way of executory devise, not subject to any prece- 
ding vested estate of inheritance by which it may be 
defeated, must be made a party to a bill affecting 
hisrights(/). 

If a person entitled to an interest prior in Hmi- 
tation to any estate of inheritance before the court, 
should be born pending the suit, that person must 
be brought before the court by a supplementary 
proceeding. And if by the determination of any 
contingency a new interest should be acquired, not 
subject to destruction by a prior vested estate of 
inheritance, the person having that interest must 
be brought before the court in like manner. And 
if by the death of the person having, when the suit 
was instituted, the first estate of inheritance, that 

(d) See Lloyd \, Johnes, 9 Vcs. (/) See Handeock \. Shaen, Co\h 
37 ; 16 Ves. 326. P. C. 122, and A^ion. 2 Eq. Ca. Abr. 

(e) Giffard v. Hort, 1 Sch. & 166; S/ierri< v. ^»re/i, 3 Bro. C. C. 
Lefr. 386, ib. 411. 229. 



232 DEMURRERS. 

estate should be determined, the person having the 
next estate of inheritance, and all the persons hav- 
ing prior interests, must be so brought before the 
court(o"). 

Trustees of real estate for payment of debts or 
legacies may sustain a suit, either as plaintiffs or 
defendants, without bringing before the court the 
creditors or legatees for whom they are trustees, 
which in many cases would be almost impossible ; 
and the rights of the creditors or legatees will be 
bound by the decision of the court against the 
trustees(^). 

The interests of persons claiming under 
[*175] the possession *of a party whose title to 
real property is disputed, as his occupying 
tenants, under leases, are not deemed necessary 
parties; though if he had a legal title, the title 
which they may have gained from him cannot be 
prejudiced by any decision on his rights in a court 
of equity in their absence; and though if his title 
was equitable merely they may be affected by a 
decision againts that title.(2). Sometimes, if the 
existence of such rights is suggested at the hear- 
ing, the decree is expressly made without prejudice 
to those rights, or otherwise qualified according to 

{g^ See 2 Sch. & Lefr. 210. 75 ; and see Curteis v. Candler, & 

(A) See Franco v. Franco, 3 Ves. Madd. 123(1). 

(1) Bifield V. Taylor, 1 Bealti/s 72. 91. 

(2) Where a receiver is appointed, the ordinary direction is that the 
tenants attorn. If apphcalion be made to persons to attorn and they 
refuse, the course is not to make them parlies : but to move that they 
should attorn ; and then such persons must come in and inform the 
court whether they are tenants or not. Reid v. Middleton, 1 Turn. 4" 
R. 455. 



DEMURRERS. 233 

circumstances. If therefore it is intended to con- 
clude such rights by the same suit, the persons 
claiming them must be made parties to it; and 
where the right is of a higher nature, as a mort- 
gage, the person claiming it is usually made a 
party(e). 

To a suit for the execution of a trust, by or 
against those claiming the ultimate benefit of 
the trust, after the satisfaction of prior charges, it 
is not necessary to bring before the court the per- 
sons claiming the benefit of such prior charges; 
and therefore, to a bill for application of a surplus 
paid after payment of debts and legacies, or other 
prior encumbrances, the creditors, legatees, or 
other prior encumbrancers, need not be made par- 
ties(A;). And persons having demands prior to the 
creation of such a trust may enforce those de- 
mands against the trustees without bringing be- 
fore the court the persons interested under the 
trust, if the absolute disposition of the property 
is vested in the trustees. But if the trus- 
tees *have no such power of disposition, as [*176] 
in the case of trustees to convey to certain 
uses, the persons claming the benefit of the trust 
must also be parties(3). Persons having specific 
charges on the trust-property in many cases are 
also necessary parties ; but this will not extend to 
a general trust for creditors or others whose de- 

(i) See 2 Ves. 450(1). (k) See Anon. 3 Atk. 572(2). 

(1) Also Copis V. Middtelon, 2 Mad. R. 410. 

(2) Also Calverley v. Phelp, 6 J\lad. 228 ; James v. Biou, 2 S. 4" 
S. 600 ; Wallace v. Smith, 1 Bealtij, 385. 

(3) Fiih v. Howland, X Paige's C. R. 20. 

30 



:^34 DEMUKKERS. 

mands are not distinctly specified in the creation 
of tlie trust, as their number, as well as the diffi- 
culty of ascertaining who may answer a general 
description, might greatly embarrass a prior claim 
against a trust-property(/). 

If a debt by a covenant or oblioration binding 
the heir of the debtor is demanded against his real 
assets in the hands of a devisee under the statute 
3 and 4 W. &/ M. c. 14. the heir must always be 
a party (???) ; and if any assets have descended to 
the heir they are first applicable, unless the assets 
devised are charged with debts in exoneration of 
the heir. The personal representative of the de- 
ceased debtor is also generally a necessary par- 
ty (??) as a court of equity will first apply the 
personal, in exoneration of the real, assets. 
[*177] *When there has been no general per- 
sonal representative, a special representa- 
tive by an administration limited to the subject of 
the suit has been required. In other cases where 
a demand is made against a fund entitled to exone- 

{l) As to cestui que trusts being making the persons claiming the 

parties, see £"irA-v.CZarA-,Pre. in Cha. other shares thereof parties to the 

275: Adams v. St. Leger. 1 Ball & suit. Smith v. S-nou. 3 Madd. 10. 

B. 181 : Calterley v. Phelp, 6 Madd. (m) Gavler v. Wade, 1 P. Wms, 

229; Douglass. HoTsf all. =1 Sim. &. 100: Warren v. StaueU, 2 Atk. 

Stu. 184(1). It mav heVe be observed, 125(2). 

that if the trust-pro[iertv be personal. (n) Knight v. Knight. 3 P. "Wms. 

and its amount be ascertained, one 331. 3 P. Wms. 350. 3 Atk. 406. 

entitled to an aUquot part thereof mav 1 Eq. Ca. Abr. 73. Love v. Farlie, 

sue the trustees for the same, without 2 Madd. R. lOl. 2 Sim. & Stu. 292. 



(1) Malin V. Malxn. 2 J. C. R. 238 ; Hickock r. ScrLbner, 3 J. C. 
31 1 ; Johnson v. Hart, lb. 322 ; Elliot's executor r. Drayton, 3 Deaau, 
C. R. 29 ; Taylor y. JiJayrant, 4 Jb. 505 ; Marshall v. Beverly, 5 
Wheaton, 313. 

(2) See the Rented Slatuies of the State o/.Y. F. , as to suits by 
creditors agaiost heirs. 2d toI. p. 454, J 42, el ttq. 



DEMTRRERS. 235 

ration by general personal assets, if there are any 
such, a like limited administrator is frequently re- 
quired to be brought before the court. This seems 
to be required rather to satisfy the court that there 
are no such assets to satisfy the demand : for al- 
though the limited administrator can collect no 
such assets by the authority under which he must 
act, yet as the person entitled to general adminis- 
tration must be cited in the ecclesiastical court 
before such limited administration can be obtain- 
ed, and as the limited administration would be de- 
termined by a subsequent grant of general admi- 
nistration, it must be presumed that there are no 
such assets to be collected, or a general adminis- 
tration would be obtained(o). 

The personal representative thus brought before 
the court must be a representative constituted in 
England : and although there may be personal 
assets in another country, and a personal repre- 
sentative constituted there, vet as he mav not be 
amenable to the process of the court, and 
those assets must be ^subject to adminis- [*178] 
tration according to the laws of that 
country, such a representative is not deemed a 

(o) See tho case of Glass t. Ox- decease of the testator, be obtained to 
henham, "2 Atk. 1'21(1 ). Where pro- defend a suit, or to carrj' a decree in- 
hale has been granted, and the exc- to execution, by virtue of stat. 38 
cator has subsequently departed out Geo. 3, c. 87. Rainsford^. Taynton, 
of the reahn, a special administration 7 Ves. 46(>('2). 
may, after twelve months from the 



(1) See also Coll v. Lasnicr, 9 Coicen's R- 320. 

(2) Provision is made bj the Revised Statutes of the State of New- 
Tork for the appointment of an administrator with the will annexed 
upon the departure or incompetency of an executor. 2d vol. 72, J 18, 
19. 20, 21. 22. 



236 DEMURRERS. 

necessary party to substantiate a demand against 
the real assets in England(/?). 

Where a claim on property in dispute would 
vest in the personal representative of a deceased 
person, and there is no general personal represen- 
tative of that person, an administration limited to 
the subject of the suit may be necessary to enable 
the court to proceed to a decision on the claim ; 
and when a right is clearly vested, as a trust-term, 
which is required to be assigned, an administra- 
tion of the effects of the deceased trustee limited 
to the trust-term is necessary to warrant the de- 
cree of the court for assignment of the term. - 

In some cases, when it has appeared at the 
hearing of a cause, that the personal representa- 
tive of a deceased person, not a party to the suit, 
ought to be privy to the proceedings under a de-* 
cree, but that no question could arise as to the 
rights of such representative on the hearing, the 
court has made a decree directing proceedings 
before one of the masters of the court, without re- 
quiring the representative to be made a party by 
amendment or otherwise ; and has given leave to 
the parties in the suit to bring a representative 
before the master on taking the accounts or other 
proceedings directed by the decree, which may 
concern the rights of such representative ; and 
a representative thus brought before the 
[*179] *master is considered as a party to the 
cause in the subsequent proceedings(^). 

In most cases the person having the legal title 

(p) See Jauncy v. Sealcy, 1 Vern. Stu. 284. 
397, and Lowe v. Farlie, 2 Madd. R. (</) See Fletcher v. Ashbumer, 1 
}01; Logan v. Farlie, 2 Sim. and Bro.C.C. 497. 1 Ves. Jr. 69. 



DEMURRERS. 237 

in the subject must be a party, though he has no be- 
neficial interest, that the legal right may be bound 
by the decree of the court(g'). Thus if a bond or 
judgment be assigned, the assignor as well as the 
assignee must be a party, for the legal right of 
action remains in the assignor(r). 

In some cases, however, it may still remain a 
question of considerable difficulty who are neces- 
sary parties to a suit. It may indeed be doubtful 
until the decision of the cause what interests may 
be affected by that decision ; and sometimes par- 
ties must be brought before the court to litigate a 
question, who had, according to the decision, no 
interest in the subject ; and as to whom therefore 
whether plaintiffs or defendants, the bill may be 
finally dismissed, though the court may make a 
decree on the subject as between other parties, 
which will be conclusive on the persons as to 
whom the bill may be so dismissed, but which the 
court would not pronounce in their absence, if 
amenable to its jurisdiction. 

Sometimes, too, a plaintiff, by waving a parti- 
cular claim, may avoid the necessity of 
making parties *who might be affected by [*^180] 
it, though that claim might be an evident 
consequence of the rights asserted by the bill 

(9) As to the case of a trustee, see Jr. 463 ; but see Brace v. Harring-^ 

Pre. in Cha. 275. 3 Barnard. 325 ; ton, 2 Atk. 2.S5, and Blake v. Jones, 

Burty. Dennet, 2 Bro. C. C. 225. 3 Anstr. 651. SeeaIso/?yan. v. .^Jider- 

7 Ves. 11. Cholmondeley \. Clin- son, 3 Madd. 174 ; Edncy \. Jewell, 

ton, 2 Meriv. 71. 6 Madd. 165. 2 Sim. and Stu. 

(r) See Cathcart v. Lewis, 1 Ves. 253(1). 

(I) Also Edmeslon v. Lyde, 1 Paige's C. R. 637; Savnders v. 
Macey, 4 Bibb'* R. 458. 543; Allen v, Crockett, lb. 240; and see 
Edward* on Partie*, 8 1 . 



238 DEMURRERS. 

against other parties. This, however, cannot be 
done to the prejudice of others(l). 

Whenever a want of parties appears on the face 
of a bill, the want of proper parties is a cause of 
deniurrer(5)(3). But if a sufficient reason for not 
bringing a necessary party before the court is sug- 
gested by the bill ; as if a personal representative 
is a necessary party, and the representation is 
charged to be in litigation in the ecclesiastical 
court(<) ; or if the bill seeks a discovery of the 
parties interested in the matter in question for the 
purpose of making them parties, and charging 
that they are unknown to the plaintiff; a demur- 
rer for want of the necessary parties will not 
hold(2^). 

(s) Clark v. Lord Angier, 1 Ca. Riiss. R. 349(2). Qucere, whether a 

in Cha. 41. Nels. R. 78, 93. Astley demurrer for want of parties should 

V. Foitntaine, Finch, R. 4. Weston be to the whole bill. See E. I. Com- 

V. Keighley, Finch, R. 82. Atwood pany v. Coles, reported 3 Swanst. 

V. Hawkins, Finch, R. 113; Galle 142, note; and see the cases of At- 

V. Greenhill, Finch, R. 202. 3 P. wood v. Hawkins, Finch, R. 113; 

VVms. 311, note. Knight v. Knight, Astley v. Fountains, Finch, R. 4, 

3 P. Wms. 331. 2 Atk. 570. 1 Eq. and Brcssenden v. Decreets, 2 Ca. 

Ca. Ab. 72. 2 Eq. Ca. Ab. 165. in Cha. 197, cited 3 Swanst. 144. n. 
Cockburn V. Thompson, 16 Yes. 321. (i) 2 Atkyns, 51; and see Jones 

Cooky. Butt, 6 Madd. 53. Weld v. v. Frost, 3 Madd. 1. 
£onham,2 Sim. and Stu. 91. Gray (u) Bowyerv. Covert, 1 Vern. 95. 

V. Chaplin, 2 Sim. and Stu. 267. Heath v. Percival, I P. Wms. 682. 

Maule V. Duke of Beauford, 1 684. 

(1) The examples given by Lord Redesdale as to parties amount to 
merely a lithe part of the reported cases and embrace only some of the 
leading principles in relation to them. The subject is a wide and most 
important one ; and has been attempted to be reduced to practical use 
by the American editor iu his work On Parlies to Bills and other 
Pleadings in Chancery. A too profuse reference to that book might 
be thought to trench upon a duty i!ue to another publisher, while, at 
the same time, it would add seriously to the size and expense of the 
present treatise. 

(2) Crane v. Deming, 7 Day, 387 ; Mitchell v. Lenox, 2 Paige's C. 
R. 280; Robinson v. Smith, 3 lb- 222. 

(3) Elmendorfv. Taylor, 10 Wheat. 152. See the form of a de- 
murrer for want of parties, Willis, 462, and note (6) (here. 



DEMURREKS. 5J39 

A demurrer for want of parties must show who 
are the proper parties : not indeed by 
name, for that might be impossible; but in [*181] 
such manner as to point out to the plaintiff 
the objection to his bill, and enable him to amend 
by adding the proper parties(a:). In case of a de- 
murrer for want of parties the court has permitted 
the plaintiff to amend, when the demurrer has been 
held good upon argument(?/)(l) 

IX. The court will not permit a plaintiff to de- 
mand, by one bill, several matters of different na- 
tures against several defendants(2;) ; for this would 
tend to load each defendant with an unnecessary 
burthen of costs, by swelling the pleadings with 
the state of the several claims of the other defend- 
ants, with which he has no connection. A de- 
fendant may therefore demur, because the plaintiff 
demands several matters of different natures of 

(x) upon this subject see 6 Ves. (y) Bressenden v. Decreets, 2 Ch. 
781 ; 11 Ves. 369 ; 16 Ves. 325; 3 Ca. 197. 
Madd. 62. {z) See 5 Madd. 146(2). 

(1) See the form of a demurrer for want of parties. 2 Equity 
Draft. 81 ; Edwards on Parlies, 275. 

(2) Garlick v. Strong, 3 Paige's C. R. 440. It was said in Gibbt 
V. Clagett, 2 Gill Sf Johns. 14, that the ground of mullifariousness 
should be raised b)' a demurrer, before answer ; and that filing an 
answer and going into testimony was a waiver of the objection. S. 
P. V/ard V. Cooke, 5 Madd. 122. 

A party, in a divorce cause, caimot set up cruelty and adultery and 
pray for a separation from bed and board for ever and also for a decree 
dissolving the marriage contract. A demurrer would hold to such a 
bill, on the ground of multifariousness. This has been distinctly de- \ 
cided by Chancellor Walworth, in the late case of Smith v. Smith, 
MS. 2d April, 1833. And the bill was ordered to be dismissed, with 
costs, to be paid by the next friend. The same rule had been laid 
down by V. C. M'Coun, in Mulock v. Mulock, 1 Edwards' V. C. Rep, 
14. 



^ 



X 



240 DEMURREKi^. 

several defendants by the same bill(«)(4). But 
as the defendants may combine together to defraud 
the plaintiff of his rights, and such a combination 
is usually charged by a bill, it has been held 
that the defendant must so far answer the bill 
as to deny combination(&). In this however, 

(a) -Se7A-e v.i/arr is, Har Jr. 337(1). put upon this passage, see 8 Ves. 

And, as late instances of demurrers 527 ; and as to general charge of 

for muUifarious^ness, see Ward v. combination, see sup. p. 40, 41. Tho 

Cooke, 5 Madd. 122 ; Salvidge v. proposition in the text, however, so 

Hi/de, 5 Madd. 138. S. C. 1 Jac. R. far as it may apply to the usual gene- 

153 ; "Turner v. Doubleday, 6 Madd. ral charge of combination, seems now 

94; Exeter Coll. v. Rowland, 6 to have been overruled. Brookes v. 

Madd. 94 ; Kaye v. Moore, 1 Sim. Lord Whitworth, 1 Madd. R. 86 ; 

andStu. 61; Dewy. Clarke, \ Sim. Salvidge v. Hyde, 5 Madd. 138. 

and Stu. 108 ; Turner v. Robinson, And the ultimate decision in the 

1 Sim. and Stu. 313(2), and Shackell latter case upon appeal, reversing the 

V. Macauley, 2 Sim. and Stu. 79(3). former, does not appear to have had 

b) Powell V. Arderne, 1 Vern. any reference to that proposition. S. 

As to the interpretation to be C. 1 Jac. 151. 



416 



(1) Fellows V. Fellows, 4 Cowen's R. 682. The rule that multi- 
farious matters shall not be joined in the same suit, is a rule of coo- 
veuience. 76. See, in connection with this case, Brinkerhoff v. 
Brown, 6 J. C. R. 139. 

To a demurrer for charging several and distinct matters against 
several defendants, a party demurring must join a denial of combina- 
tion, although the bill charges it only formally. Roth, v. Butler, 
Vernon 8^ Scriven's (Irish) R. 85 ; Paul v. Forbes, lb. 376. If a bill 
be liable to be dismissed for multifariousness, it ought to be dismissed 
in toto, and not be made the foundation of partial relief. Gibbs r. 
Clagett, supra. 

(2) Vice-Chancellor Shadwell, in Marcos v. Pebrer, 3 Sim. 466. said, 
he could not coincide with the decision in this case of Turner v. Robin- 
ton,{S. C. 6 Mad. 94 ;) as he could not see how, consistently with the rules 
of the court, the personal estate of A. could be joined in the same suit 
with the personal estate of B. ; that there might be questions respect- 
ing the personal estate of B. with which the parties interested in the 
personal estate of A. were not at all concerned ; and that, therefore, 
be did not think he was bound to adopt the principle of Turner v. 
Robinson. 

(3) Dunn v. Dunn, 2 Sivi. 329; Wynne y. Callender, 1 Rutt. 
293. 297. 

(4) See the form of a demurrer for multifariousness. Willis, 464 ; 
2 Equity Draft. 79, (2d edit.) 



DEMURRERS. 241 

*the defendant must be cautious; for if [*182] 
the answer goes farther tlian merely to 
deny combination, it will overrule the demurrer(c). 
A demurrer of this kind will hold only where the 
plaintiff claims several matters of different na- 
tures(l); but when one general right is claimed 
by the bill, though the defendants have separate 
and distinct rights, a demurrer will not ho\d(d). 
As where a person claiming a general right to the 
sole fishery of a river, filed a bill against several 
persons claiming several rights in the fishery, as 
lords of manors, occupiers of lands, or other wise(6). 
For in this case the plaintiff did not claim several 
separate and distinct rights, in opposition to seve- 
ral separate and distinct rights claimed by the de- 
fendants ; but he claimed one general and entire 
right, though set in opposition to a variety of dis- 
tinct rights claimed by the several defendants. So 
where the lord of a manor filed a bill against more 
than thirty tenants of the manor, freeholders, 
copyholders, and leaseholders, who owed rents to 
J;he lord, but had confused the boundaries of their 
several tenements, praying a commission to as* 
certain the boundaries; and it was objected 



}: 



(c) Hester V. Weston, 1 Vern. 463. tents, see Dillij v. Doig, 2 Vcs. Jr. 

(d) See the cases cited above, pp. 486. 
145, 146. And see Buccle v. Atleo, (e) Mayor of York v. PUkington, 
2 Vern. 37. As to cases of in- 1 Atk. 282. 

fringement of copyrights and pa- 



(1) Thus, an infant heir and only son of an intestate joined with his 
sisters in a bill against their mother, the administratrix, for an account 
of the intestate's real and personal estate : demurrer for multifarious- 
ness allowed. Dunn y. Dunn, 2 Sim. 329. Similar error, Maud v. 
Acklom,Ib. 331. 

31 



242 DEMURRERS'. 

[*183] at the hearing, that the *suit was impro-' 
per, as it brought before the court many 
parties having distinct interests ; it was answered, 
that the lord claimed one general right, for the as- 
sertion of which it was necessary to ascertain the 
several tenements, and a decree was made accord- 

inglj(/)- 

As the court will not permit the plaintiff to de- 
mand by one bill several matters of different na- 
tures against several defendants, so it will not 
permit a bill to be brought for part of a matter only ; 
but to prevent the splitting of causes, and conse- 
quent multiplicity of suits, will allow a demurrer 
upon this ground(^)(l). 

A discovery being compelled upon a bill praying 
relief, for the purpose of enabling the plaintiff to 
obtain that relief, the discovery is in general inci- 
dental to the relief(/«), and a demurrer to the relief 
consequently extends to the discovery likewise(e). 
But as the court entertains a jurisdiction in certain 
cases for the mere purpose of compelling a disco- 
very, without administering any relief, it was for- 
merly conceived that though a plaintiff prayed by 

his bill relief to which he was not entitled, 
[*184] he might yet *show a title to a discovery; 

and therefore, though a demurrer might 

{f) Magdalen Coll. against At- 544 ; 3 Meriv. 502. It may happen, 

hill and others, at the Rolls, 26 Nov. however, that the rehef sought may 

1753. See the distinctions taken in be consequential to discovery to which 

Berke v. Harris, Hardres, 337. the plaintifl' is entitled, in which 

(g) 1 Vern. 29. Edgworth v. case, a general demurrer would per- 

Swift, 4 Bro. P. C. 654, Toml. ed. haps be overruled. See Brandon v. 

See above, p. 146. Sands, 2 Ves. Jr. 514 j Brandon v. 

(h) 1 Sim. & Stu. 93. Johnson, ib. 517. 

(t) See Baker v. Mellish, 10 Vea. 

(1) See the form of such a demurrer, Willis, 466.. 



DEMURRERS. 243 

hold to the rehef, the defendant might notwith- 
standing be compellable to answer to the disco- 
very, the bill being then considered as in effect a 
bill for a discovery mere]y(A;). This, however, has 
since been determined otherwise(/) ; and where a 
plaintiff* entitled to a discovery added to his bill a 
prayer for relief(m), a demurrer has been allow^- 
ed(w). And where a defendant had demurred to 
the discovery sought by a h'lW^ for want of title in 
the plaintiff to require the discovery^ but had 
omitted to demur to the relief prayed, to which 
that discovery was merely incidental, it was con- 
ceived the demurrer must, in point of form, be 
overruled ; for the demurrer, applying to the dis- 
covery only, admitted the title to relief, and conse- 
quently admitted the title to the discovery, 
which was only incidental to *the re- [*185] 
lief(o). But though a plaintiff" may be 

(k) See Fry v. Penn, 2 Bro. C. Simpkinson, 11 Ves. 509 ; 17 Ves. 

C. 280(1). 216; 1 Ves. & Bea. 539 ; 2 Ves. & 

(/) See Price v. James, 2 Bro. C. Bea. 328 ; Jones v. Jones, 3 Meriv. 

C. 319. 161 ; 3 Meriv. 502. This may pro- 

(7/1) It is presumed, that in order bably have the effect of compelling a 

to the defendant being thus able by plaintiff, in a doubtful case, to frame 

demurrer wholly to protect himself his bill for a discovery only in the 

against the interference of the court, first instance ; and, having obtained 

it must appear from the manner in it, by amending his bill to try the 

which the plaintilf states his case, (juestion whether he is also entitled 

that he seeks the discovery as inci- to relief; which was formerly a fre- 

dental to the relief See cases in the qucnt practice, and possibly a greater 

ne.vt note. inconvcnience(2). 

(n) Collis V. Swayne, 4 Bro. C. C. (0) Morgan v. Harris, in Ch. 31, 

480 ; Loker v. Rolle, 3 Ves. 4; Ryvcs Oct. 1786, reported 2 Bro. C. C. 121, 

V. Ryves, 3 Ves. 343 ; 6 Ves. 63 ; 6 Waring v. Mackreth, Forrest, 129. 
Ves. 686; 8 Ves. 3; Gordon v. 

(1) Also Higginhotham v. Burnet, 5 J. C. R. 184; Laight v. Mor- 
gan, 1 J. C. 429 ; S. C.2 C. C. E. 344. 

(2) And see Biitterworth v. Bailey, 15 Ves. 361 ; Crow v. Tyrell, 
2 Mad. C. R. 409 ; Lousada v. Tempter, 2 Russ. 561 ; M'Dougall v. 
Miln, 2 Paige's C. R. 325 ; also page 201, post. ; Allen v. Copeland, 
7 Price's R. 522 ; Mellish v. Richardson, 1 1 Price, 530 ; Jackson v. 
Strong t 13 Price, 494. 



244 DEMURRERS. 

entitled to the relief he prays, there may yet be 
reasons to induce a court of equity to forbear com- 
pelling a discovery(p). 

It remains therefore to consider the objections 
to a bill which are causes of demurrer to discovery 
only. These are, I. That the case made by the bill 
is not such in which a court of equity assumes a 
jurisdiction to compel a discovery : II. That the 
plaintiff has no interest in the subject, or no inte- 
rest which entitles him to call on the defendant for 
a discovery : III. That the defendant has no in- 
terest in the subject to entitle the plaintiff to in- 
stitute a suit against him even for the purpose of 
discovery : IV. Although both plaintiff and de- 
fendant may have an interest in the subject, yet 
that there is not that privity of title between them 
which gives the plaintiff a right to the discovery 
required by his bill : V. That the discovery if ob- 
tained cannot be material: and, VI. That the 
situation of the defendant renders it improper for a 
court of equity to compel a discovery. 

I. Where a bill prays relief the discovery if 
material to the relief being incidental to it, a plain- 
tiff showing a title to relief also shows a case in 
which a court of equity will compel discovery, 

unless some circumstance in the situation 
[*186] of the ^defendant renders it improper. But 

where the bill is a bill of discovery merely, 
it is necessary for the plaintiff to show by his bill 
a case in which a court of equity will assume a 

(p) A plaintiff may be entitled to proper to give the discovery, may yet 

relief in equity, independently of the demur to the relief. 2 Atk. 157. 

discovery. 1 Swanst. 294. And Hodgkin v. Longden, 8 Ves. 2. 

there may be instances in which a Todd v. Gee, 17 Ves. 273. 
defendant, although he should think 



DEMURRERS. 245 

jurisdiction for the mere purpose of compelling a 
discovery. This jurisdiction is exercised to assist 
the administration of justice in the prosecution or 
defence of some other suit, either in the court itself 
or in some other court(5r)(l). Where the object 
of a bill is to obtain a discovery to aid the prose- 
cution or defence of a suit in the court itself, as 
the court has already jurisdiction of the subject, 
to state the suit depending is sufficient to give the 
court jurisdiction upon the bill of discovery(3). 

(9) See Moodaly v. Moreton, Dick, compelled to aid the jurisdiction of & 

652. S. C. 1 Bro. C. C. 469. foreign court. Crowe and othera 

Bishop of London V. Fytche, 1 Bro. against Del Ris and Vallego, in 

C. C. 96. Cardale v. IVatkins, 5 Chan. 1 1th July, 1769(2). 
Madd. 18. A discovery has been 

(1) See the form of such a bill. Willis, 316. It is well established, 
that whether the action, in aid of which a discovery is sought, be found- 
ed on contract or in tort, if the plaintiff has an equitable ri^ht, a dis- 
covery will be enforced. Skinner v. JuJson, 6 Day, JV. S. 528, and 
cases there referred to; JVurthrop v. Hatch, 6 Connecticut R. 361. 
After a verdict at law, the party comes too late with a bill for discovery. 
Duncan v. Lyon, 351. 

(2) A foreign judgment cannot be questioned in the courts in this 
country. Therefore, a bill for a discovery and a commission to examine 
witnesses abroad, in aid of the complainant's defence loan action brought 
in this country on a foreign judgment, is demurrable. Martin v. JVi- 
colla, 3 Sim. 458. 

(3) It ought to state enough to enable the court to see that the ends 
of justice require its interposition ; and the facts sought to be discover- 
ed should be so far stated as to show their pertinency and relevancy. 
M'Intyre v. Mancius, 3 J. C. R. 45; S. C. on appeal, 16 J. R, 
592; and see Askam v. Thompson, 4 Price, 330. If the facts depend 
on the testimony of witnesses and the court of law can compel their 
attendance, chancery will not interfere. Gelston v. Hoyl, 1 J. C. R. 
543; and see Seymour v. Seymour, 4 lb. 409. A bill of discovery 
must be for matters which lie only within the defendant's knowledge. 
Bullock V. Boyd, 2 Marsh. 323. A bill of discovery will be sustained 
to aid the prosecution or defence of a civil suit in a foreign tribunal. 
Mitchell V. Smith, 1 Paige's C. iJ. 287. [And see pages 200, 201, 
post.] There is 00 limitation, in point of time, within which a bill for 



246 DEMURRERS. 

But if a bill is brought to aid, by a discovery, the 
prosecution or defence of any proceeding not 
merely civil in any other court, as an indictment 
or information, a court of equity will not exercise 
its jurisdiction to compel a discovery, and the de- 
fendant may demur(r). And in the case of suits 
merely civil in a court of ordinary jurisdiction, if 
that court can itself compel the discovery re- 
quired, a court of equity will not interfere(*). 
Therefore, where a bill w^as filed for a discovery 
of the value of the respective real and personal 
estates of the inhabitants of a parish in which a 
church rate had been assessed, and of the 
[*187] application *of the money collected, a de- 
murrer was allowed ; because the ecclesi- 
astical court, to which the ordinary jurisdiction be- 
longed, was capable of compelling the discovery(<). 
II. A bill must show an interest in the plaintiff 
in the subject to which the required discovery re- 

(r) 2 Ves. 398 ; and see Thorpe (s) 1 Atk. 288: 1 Ves. 205 ; Anon. 
V. Macauley, 5 Madd. 218. Shackell 2 Ves. 451. 
V. Macaulaij, 2 Sim. & Stu. 79(1). (t) Dunn v. Coafes, 1 Atk. 288. 



discovery ia aid of an action at law must be filed. Muni v. Scott, 3 
Price, All. 

Chancellor Walworth, in the late case of Dias v. Merle, (MS.) re- 
cognises another species of discovery-bill where no relief is prayed : 
namely, a bill of discovery in aid of the original (chancery) suit. See 
an extract from bis opinion at page 62, ante, in note. 

(1) Patterson v. Patterson, 1 Hayward's R. 167 ; M-Inlyre v. Man- 
cius, on appeal. 16 J. R. 276 ; Skinner v. Judson, 8 Day, 528. But 
jl is said, that if the forfeiture or penalty is waived by those who are en- 
titled to it or is barred by the statute of limitations, it no longer shields 
the party from a discovery. Skinner v. Judson, supra. See the form 
of a demurrer where a discovery would subject the defendant to pains 
and penalties and forfeitures. Willis, 477 ; and observe note (a) there. 
Also page 194, post. 



DEMURRERS. 247 

lates(?«), and such an interest as entitles him to 
call on the defendant for the discovery. Therefore 
where a plaintiff filed a bill for a discovery merely, 
to support an action, which he alleged by his bill 
he intended to commence in a court of common 
law, although by this allegation he brought his 
case within the jurisdiction of a court of equity to 
compel a discovery, yet the court being of opinion 
that the case stated by the bill was not such as 
would support an action, a demurrer was allow- 
ed(x) ; for unless the plaintiff had a title to reco- 
ver in an action at law, supposing his case to be 
true, he had no title to the assistance of a 
court of equity to obtain from the confession of 
the defendant evidence of the truth of the case(i/). 
And upon a bill filed by a creditor, alleging that 
he had obtained judgment against his debtor, and 
that the defendant to deprive him of the benefit of 
his judgment had got into his hands goods of 
the debtor under pretence of a debt due 
*to himself, and praying a discovery of [*188] 
the goods ; the defendant demurred, be- 
cause the plaintifJ' had not alleged that he had 
sued out execution, and because until he had so 
done the goods were not bound by the judgment, 
and consequently the plaintiff had no title to the 
discovery ; and the demurrer was allowed(2;)(l). 

(u) Ramere v. Rawlins, Rep. Chan. Hil. 1782 ; cited 3' Bro. C. C 

Temp. Finch. 36 ; Newman v. Hold- 155 ; Vf' allis v. Duke of Portland, 3 

tr, ib. 44 ; and see 2 Ves. 247 ; Ves. 494 ; Lord Kensington v. Man- 

Northleigh v. Luscombe, Arabl. 612, sell, 13 Ves. Jr. 240. 

and Wright v. Plumtree, 3 Madd. (y) See The Mayor of London v. 

481. Levy, 8 Ves, 398. 

(a:) Debbieg and Lord Howe in (^) Angell v. Draper, 1 Vern. 

(1) See the form of such a demurrer. Willis, 470. 



^48 



DEMURRERS. 



III. Unless a defendant has some interest in the 
subject he may be examined as a witness, and 
therefore cannot in general be compelled to an- 
swer a bill for a discovery(2:) ; for such a bill can 
only be to gain evidence, and the answer of the 
defendant cannot be read against any other person, 
not even against another defendant to the same 
bill(«;)(2). But if the bill states that the defendant 
has or claims an interest, a demurrer, which ad- 
mits the bill to be true, of course will not hold(6), 
though the defendant has no interest ; and he can 
then only avoid answering the bill by plea or dis- 
claimer. There seems to be an exception to the 
rule in the case of a corporation ; for as a corpora- 
tion can answer no otherwise than under their com- 
mon seal, and therefore, though they answer false- 
ly, there is no remedy against them for perjury, it 
has been usual, where a discovery of entries in the 
books of the corporation, or of any act done by the 

corporation, has been necessary, to make 
[*189] *their secretary or book-keeper or other 

officer a party(c) ; and a demurrer because 

399. But see Taylor v. HiU, 1 Eq. ton v. Hughes, 7 Ves. 287; 14 Ves. 

Ca. Ab. 132. 252 ; Hoic v. Beat, 5 Madd. 19(1). 

(z) Steward v. E. I. Comp. 2 (a) 2 Vern. 380. 3 P. Wins. 311, 

Vern. 380 ; Dineley v. Dineley, 2 and ib. note (h). 
Atk. 394 ; Plummer v. May, 1 Ves. (b) 1 Ves. 426. 
426; 1 Ves. Jr. 294, note (e); Fen- (c) Anon. 1 Vern. 117(3). 

(1) Hampton v. Hampton, Fern. Sf Scriv. 514; Crane v. Deming, 
1 Day's R. 387. 

(2) And if a bill be filed against two, and one has no interest, a de- 
murrer will hold. Tlius, a bill was filed against liu.sband and wife 
showing an interest in the husband, but none in the wife. Both joined 
in a general demurrer; and it was sustained as to her. Crane v. 
Deming, supra. See a demurrer to a bill where the defendant could 
be examined as a witness. Willis, 472. 

(3) And see Vermilyea v. The Fulton Bank, 1 Paige's C. R. 37 ; 



tJfiMUllRERS. 249 

the bill showed no claim of interest in the defendant 
has been in such case overruled(<Z). So, where 
bills have been filed to impeach deeds on the 
ground of fraud, attorneys who have prepared the 
deeds, and other persons concerned in obtaining 
them, have been frequently made defendants, as 
parties to the fraud complained of, for the purpose 
of obtaining a full discovery ; and no case appears 
in the books of a demurrer by such a party be- 
cause he had no claim of interest in the matter in 
question by the bill. Indeed an attorney under 
such circumstances, being brought as a party to 
the suit to a hearing, has been ordered to pay 
costs(c) ; apparently on the same ground as costs 
were awarded against arbitrators in the cases of 
their misconduct before noticed(y). 

IV. Although both plaintiff and defendant may 
have an interest in the subject to which the disco- 
very required is supposed to relate, yet there may 
not be that privity oftitle between them which can 
give the plaintiff a right to the discovery. Thus 
where a bill was filed by a person claiming to be 
lord of a manor against another person also claim- 
ing to be lord of the same manor, and prayings 
amongst other things, a discovery in what 
manner *the defendant derived title to the [*190] 
manor, the defendant demurred, because 

(d) Wych V. Meal, 3 P. Wms. 310. (e) Bennet v. Vade, 2 Atk. 324. 

TVes. Jr. 289. 14 Ves Hb'J. et seq. 1 Sch. and Lefr. 227. Fenwick v. 

Gibbons y. Waterloo Bridge Comp. Reed, 1 Meriv. 114. 

5 Pri. Ex. R. 491. (/) Vid. sup. p. 161. 

President, Sfc, of Fulton Bank v. Sharon Canal Co. /6. 219 ; 2 Re- 
tised Statutes o/" JV. F. 465, J 52 ; also p. 103, note, ante. 

32 



250 DEMURRERS. 

the plaintiff had shown no right to the discovery, 
and the demurrer was allowed(o-). 

So where a bill was filed by a person claiming 
under a grant from the duchy of Lancaster, to be 
bailiff of a hberty within the duchy, with a right 
to all waifs, estrays, and other casualties within 
the liberty, and all fees and perquisites respecting 
the same, against the owner of an inn in the liber- 
ty, and his tenants, alleging that the inn-yard had 
been used as a common pound within the liberty 
for all waifs and strays and casualties ; and that 
the tenant, under demise from the owner, had 
seized and taken all waifs and strays and other 
casualties ; and received fees and perquisites 
thereon ; and required the owner to discover how 
he derived title thereto, and what leases or demises 
he had made thereof; a demurrer to the discovery 
was allowed(^). In general, where the title of the 
defendant is not in privity, but inconsistent with 

the title made by the plaintiff, the defend- 
[*191] ant *is not bound to discover the evidence 

of the title under which he claims(z). And 
therefore, on a bill filed by an heir ex parte ma- 
terna against a general devisee and executor, who 
had completed by conveyance to himself a pur- 

(g-) Adderley and Sparrow, in of Dartmouth against Scale in Chan. 

Chan. Hil. 1779. 18 Dec. 1717. rep. 1 Cox, R. 416. 

(/i) Ritson V. Sir John Danvers, See also Ritson v. Sir John Dan- 

in Duchy C of Lancaster, 28 Oct. vers, 24 Nov. 1790, on demurrer to an 

1787, by the Chancellor, assisted by amended bill. Baron Thomson aa- 

Lord Loughborough and Mr. Justice sisting the Chancellor ; and Att. 

Wilson. The cases of Sparrow v. Gen. v. Sir John Danvers, 25 Jan. 

Adderley, Hungerford v. Goreing, 1792. Grose J. and Thomson B. 

2 Vern. 38. Stapleton v. Sherrard, 1 assisting. 

Vern. 212. Sherbone v. Clerk, 1 (i) Stroud v. Deacon, 1 Ves. 37. 
Vern. 273, and Welby and Duke of Buden v. Dore, 2 Ves. 445. Samp- 
Rutland, 2 Brown P. C. 39. Toml. son v. Swettenham, 5 Madd. 16. 
ed. were cited; and Lord Loughbo- Tyler v. Drayton, 2 Sim. and Stu. 
rough mentioned a case of Sir Wil- 309, and the cases there cited ; and 
liam Wake and Conyera before Lord see Chamberlain v. Knapp, 1 Atk. 
NoitMnjcton. See also Corporation 52, 



DEMURRERS. 251 

chase of a real estate contracted for by the testa- 
tor after the date of his will, alleging that there 
was no heir ex parte paterna, but that the devisee 
set up a title under a release from his father as 
heir ex parte paterna of the testator, and praying 
a conveyance to the plaintiff, and seeking a disco- 
very in what manner the father claimed to be heir 
ex parte paterna, and the particulars of the pedi- 
gree, under which he claimed, a demurrer to that 
discovery was allowed(A;). 

V. As the object of the court in compelling a 
discovery is either to enable itself or some other 
court to decide on matters in dispute between the 
parties, the discovery sought must be material, 
either to the relief prayed by the bill, or to some 
other suit actually instituted, or capable of being 
instituted. If therefore the plaintiff does not show 
by his bill such a case as renders the discovery which 
he seeks material to the relief, if he prays relief, or 
does not show a title to sue the defendant in some 
other court (/), or that he is actually in- 
volved in litigation* with the defendant, or [*192] 
liable to be so, and does not also show 
that the discovery which he prays is material to 
enable him to support or defend a suit, he shows 
no title to the discovery, and consequently a de- 
murrer will hold(m). Therefore where a bill filed by 
a mortgagor against a mortgagee to redeem sought 
a discovery, whether the mortgagee was a trus- 

(k) Ivie V. Kekewich in Ch. 27 v. Mansell, 13 Ves. Jr. 240. 

July, 1795, rep. 2 Ves. Jr. 679. (m) See cases cited last page, note 

(I) Debbieg and Lord Howe, in (I) ; and see 1 Ves. 249. 1 Bro. C. C. 

Chan. Hil. 1782 ; cited 3 Bro. C. C. 97, and Askam v. Thompson, 4 Pri. 

155. Wallis V. Duke of Portland, 3 Exch. R. 330. Cardale v. Watkins, 

Ves. 494. The Mayor of London v. 5 Madd. 19. 
Levy, 8 Ves. 398. Lord Kensington 



252 DEMURRERS. 

tee, a demurrer to the discovery was allowed. For 
as there was no trust declared upon the mortgage, 
it was not material to the rehef prayed whether 
there was any trust reposed in the defendant or 
not(w). So where a bill was filed by a lord of a 
borough, praying, amongst other things, a disco- 
very, whether a person applying to be admitted 
tenant was a trustee, the defendant demurred(o), 
it being wholly immaterial to the plaintiff's case 
whether the defendant was a trustee or not. And 
where a bill was brought for a real estate, and 
sought discovery of proceedings in the ecclesiastical 
court upon a grant of administration, the defendant 
demurred to that discovery, the proceedings in the 
ecclesiastical court being immaterial to the plain- 
tiff's ca.se.(jp). Again, where a bill, to establish 
an agreement for a separate maintenance for the 
defendant's wife, prayed a discovery of ill treats 
ment of the wife, to make her recede from the 

agreement, the defendant demurred to the 
[*193] disco very (^) * which could not be material 

to the case made by the bill. But in ge- 
neral, if it can be supposed that the discovery may 
in any way be material to the plaintiff in the sup- 
port or defence of any suit, the defendant will be 
compelled to make it(r). Thus where a bishop 
filed a bill against the patron of a living and a 

(n) Harvey v. Morris, Rep. Tem. (g) Hincks v, Nelthrope, 1 Vern. 
Finch. 214. 204. 

(o) Lord Montague \. Dudman, 2 (r) 1 Ves. 205 ; and see Richards 
Ves. 396. V. Jackson, 18 Ves. 472. 1 Madd. R. 

(p) 2 Atk. 388(2). 192. Att. Gen. v. Berkeley, 2 Jac. 

&. W. 291. 

(1) And see (he form of such a demurrer, Willis, 475. 



DEMURRERS. 253 

clerk presented by him, to discover whether the 
clerk had given a bond of resignation, and the 
patron demurred, because the discovery cither 
was such as might subject him to penalties and 
forfeitures, or it was immaterial to the plaintiff, 
the demurrer was overruled; the court declaring 
a clear opinion that the bond was not simoniacal, 
but conceiving that the discovery might be ma- 
terial to support a defence to a quare impedit^ 
upon this ground, " that the bond put the clerk 
" under the power of the patron, in derogation of 
"the rights of the ordinary (5)." 

VI. The situation of a defendant may render it 
improper for a court of equity to compel a disco- 
very, either because the discovery may sub- 
ject the defendant *to pains or penalties, [*194] 
or to some forfeiture, or something in the 
nature of a forfeiture ; or it may hazard his title 
in a case where in conscience he has at least an 
equal right with the person requiring the discovery, 
though that right may not be clothed with a per- 
fect legal title(<). 

It is a general rule, that no one is bound to an- 
swer so as to subject himself to punishment, in 
whatever manner that punishment may arise, or 
whatever may be the nature of that punishment(2*). 

(*) Bishop of London, against the case reported in 1 Bro. C. C. 96, 
Fyytche, in Chan. Trin. 1781. In and Cunningham's Law of Simony, 
consequence of this decision an an- See also Grey v. Hesketh, Ambl. 268. 
8wer was put in admitting the bond ; (i) See Ivy v. Kekewich, 2 Ves. 
and a; quare impedit being brought Jr. 679 ; Lord Shaftesbury v. Arrow- 
it v/ as &naMy deter mined in the house sviilh, 4 Ves. 66. 13 Ves. 251. 15 
of lords against the patron, and he Ves. 378; Wright v. Plumtree, 3 
consequently lost his presentation. Madd. 461 ; Glegg v. Legh, 4 Madd. 
Perhaps, therefore, the overruling 193. 

the demurrer was in contradiction to (u) 2 Ves. 245, and the authorities 

the principle* on which courts of referred to in note, 1 Eq. Ca. Ab. 

equity have proceeded in the cases 131 ; 11 Ves. 525 ; 2 Swanst. 214, 
considered under the next head. See 



254 DEMURRERS. 

If therefore a bill requires an answer which may(ar) 
subject the defendant to any pains or penalties, he 
may demur to so much of the h[\\(y). As if a bill 
charges any thing which, if confessed by the an- 
swer, would subject the defendant to any criminal 
prosecution(2;), or to any particular penalties, as 
an usurious contract(«), maintenance(6), cham- 

perty(c), simony(rf). And in such cases, 
[*195] if the defendant is *not obliged to answer 

the facts he need not answer the circum- 
stances, though they have not such an immediate 
tendency to criminate(<Z)(2). 

(x) 1 Atk. 539, 1 Swanst. 305. 4 ; Whitmora v. Francis, 8 Pri. Ex. 

(y) See Billing v. Flight, 1 Madd. R. 616. 

R. 230(1). And it may be observed, (b) Penrice v. Parker, Rep. Temp, 

that such a demurrer will not be re- Finch. 75 ; Sharp v. Carter, 3 P. 

garded as any admission of the truth Wms. 375 ; Wallis v. Duke of Port- 

of the charge. 16 Ves. 69. land, 3 Ves. 494. 

(~) East India Company v. (c) See 2 Sim. & Stu. 252. 

Campbel, 1 Ves. 246; Chetwynd v. (d) Att. Gen. v. Sudell, Prec. in 

Lindon. 2 Ves. 451 ; Cartwright v. Cha. 214. 1 Meriv. 401. But see 

Green, 8 Ves. 405. 14 Ves. 65. p. 193, note (s). 

(a) Fenton v. .Bio??ier,Tothill 135 ; {d) 1 Ves. 247, 248. 19 Ves. 227, 

Earl of Suffolk v. Green, 1 Atk. 450. 228. 
2 Atk. 393. 22 Vin. Ab. Usury, Q.. 

(1) Patterson v. Patterson, 1 Hayward's (North Carolina) R. 167 ; 
Fleming v. St. John, 2 Sim. 181 ; Wnlfy. Wolf's executor, 2 Harris 
«Sr Gill, 382 ; Livingston v. Tompkins, 4 J. C. iJ. 415 ; Lambert v. 
People, 9 Cowen, 578 ; JVorlhrop v. Hatch, 6 Dai/s W. 361 ; Leggett 
V. Postley, 2 Paige's C. R. 599. But the Revised Statutes of the 
State of New-York, and a statute since passed, have provisions which 
compel a defendant to make a discovery in many cases where criminal 
prosecution and penalties can take place and be exacted. Thus, a de- 
fendant must answer to a gaming transaction at the suit of the loser or 
any other person. 1 R. S. 664, ^ 19. As to moneys illegally received 
for brokerage. lb- 709, ^ 4. As to moneys and things taken usurious- 
ly. lb. 772, 5 6. And, also, in all cases where the defendant is charged 
with being a party to a fraudulent conveyance. Z,aic5 o/" 1833, p. 17. 
See the form of a demurrer where a discovery would subject the de- 
fendant to pains, penalties and forfeitures. Willis, 477. And see 
page 186, ante. 

(2) In a demurrer on this ground, it is necessary to state in it the 



DEMURRERS. 355 

If the plaintiff is alone entitled to the penalties, 
and expressly waives them by his bill, the defend- 
ant shall be compelled to make the discovery ; for 
it can no longer subject him to a penalty(e). As 
if a rector, or impropriator, or vicar, files a bill for 
tithes, he may waive the penalty of the treble 
value(/), to which he is entitled by the statute of 
2 &. 3 Edward VI. and thus become entitled to a 
discovery of the tithes substracted. And though 
a discovery may subject a defendant to penalties 
to which the plaintiff is not entitled, and which he 
consequently cannot waive, yet if the defendant 
has expressly covenanted not to plead or demur to 
the discovery sought, which is the common case 
with respect to servants of the East-India Com- 
pany, he shall be compelled to answer(^). Where, 
too, a person by his own agreement subjects him- 
self to a payment in the nature of a penalty if he 
does a particular act, a demurrer to discovery of 

(e) Lord Uxbridge v. Staveland, (g) South Sea Comp. v. Bumsted, 

1 Ves. 56. And see 1 Vern. 129; 1 Eq. Ca. Ab. 77; E. I. Comp. v. 

Bullock V. Richardson, 11 Ves. 373. Atkins, 2 Ves. 108. And see Pax- 

(/) Anon. 1 Vern. 60. ton v. Douglas, 16 Ves. 239. 

why and wherefore a forfeiture would be the consequence of the dis- 
covery. Sharp V. Sharp, 3 J. C. R. 407 ; and see Le Roy v. Vedder, 
on appeal, 1 J. R. 417 ; Le Roij v. Servis, \ C. C. E. \ ; S. C 2 lb. 
175; Wolf v. Wolf 's executor, 2 Harris 8f Gill, 382. In Talbot v. 
Smith, Ridg. Lap. 2 Scho. (Irish) R. 306, a defendant demurred to a 
bill seeking discovery which would have made him liable to a penalty 
under the statute of usury. But it appearing that the statute of limi- 
tations had barred the penal action, it was held that there was no 
ground for a demurrer. The contrary appears to have been held ia 
Connecticut. See the case of J^orthrop v. Hatch, 6 Day's R. 361 ; 
also Lambert v. The People, 9 Cowen's R. 578. See as to officers of 
a corporation objecting to answer on the ground that it may subject 
the company to a forfeiture of its charter. Robinson v. Smith, 3 
Paige's C. R. 222. 



256 DEMURRER8. 

that act will not hold(/). Thus where a lessee 
covenanted not to dig loam, clay, sand or gravel, 
except for the purpose of building on the land de- 
mised, with a proviso that if he should dig 
[*196] any of those articles for *any other pur- 
pose, he should pay to the lessor twenty shil- 
lings a cart-load, and he afterwards dug great 
quantities of each article ; upon a bill for disco- 
very of the quantities, waiving any advantage of 
possible forfeiture of the term ; a demurrer of the 
lessee, because the discovery might subject him 
to a payment by way of penalty, was overruled(^). 

And a party shall not protect himself against 
relief in a court of equity, by alleging that if he 
answers the bill filed against him, he must subject 
himself to the consequences of a supposed crime, 
though the court will not force him by his own 
oath to subject himself to punishment; and there- 
fore in the case of a bill to inquire into the validity 
of deeds upon a suggestion of forgery, the court 
has entertained jurisdiction of the cause; and 
though it has not obliged the party to a discovery 
of any fact which might tend to show him guilty 
of the crime, has directed an issue to try whether 
the deeds were forged(/i). 

It should seem that a demurrer will also hold to 
any discovery which may tend to show the de- 
fendant guilty of any moral turpitude, as the birth 
of a child out of wedlock(i). But a mother has 

(/) See Morse v. Buck-worth, 2 {h) 2 Ves. 246. See also 1 Eq. 

Vern. 443; E. I. Comp. v. Neave, Ca. Ab. 131, p. 11; Att. Gen. v. 

5 Ves. 173. Sudell, Prec. in Cha. 214. 

(g) Richards against Cole, or Bro- (t) Parker, 163. 2 Ves. ' 451 ; 

drepp against Cole, in Chan. Hil. Franco \. Bolton, 3 Ves. 368 ; King 

vacation, 177y. v. Burr, 3 Meriv. 698. 



DEMURRERS. 257 

been compelled to discover where her child was 

born, though it might tend to show the child to be 

an alien(/b) ; for that was not a discovery 

of any illegal act, or *of any act which [*197] 

could affect the character of the defend- 

ant(Z). 

A demurrer will likewise hold to a bill requir- 
ing a discovery which may subject the defendant 
to any forfeiture!^ wi) of interest : as if a bill is 
brought to discover whether a lease has been as- 
signed without license(/i) ; or whether a defendant 
entitled during widowhood(<>), or liable to forfeit- 
ure of a legacy in case of marriage without con- 
sent(j?), is married; or to discover any matter 
which may subject a defendant entitled to any of- 
fice or franchise to a quo warranto(q). But if the 
plaintiff is alone entitled to the benefit of the for- 
feiture, and expressly waives(r) it by the bill, as 
in the case of a bill for discovery of waste(5), a de- 
murrer will not hold; for the waiver gives the 
court a ground of equity to award an injunction, if 
the plaintiff sues for the forfeiture(<). If the disco- 
very sought is of a matter which would show the 
defendant incapable of having any interest or title ; 
as whether a person claiming a real estate under 

(k) Att. Gen. v. Duplessia, 2 Ves. Atk. 392. Chancey v. Fenhoulef, 2 

287, ib. 494. Ves. 265. 

(0 1 Meriv. 400. (q) 1 Eq. Ca. Ab. 131, p: 10. 

(m) Tothill, 69. (?•) i Ves. 56. See above, p. 195, 

(n) Lord Uxbridgc v. Stavcland, note (e). 

1 Ves. 56. (s) 2 Atk. 393. Att. Gen. v. Vin- 

(o) Monnins v. Monnins, 2 Chan, cent, 2 Eq. Ca. Ab. 378. S. C. cited 

Rep. 68. Com. R. 664(1). 

(p) Chauncey v. Tahourden, 2 (t) 1 Ves. 56. 

(1) See the form of a demurrer in a case where such forfeiture is 
itot waived. 2 Equity Draft. 82. 

33 



258 DEMURRERS. 

a devise was an alien, and consequently incapable 
of taking by purchase(z*) ; a demurrer will not hold. 
And where a devise over of an estate in case of 
marriage was considered as a conditional 
[*198] limitation *and not as a forfeiture, a de- 
murrer to a bill for a discovery of mar- 
riage was overruled(x). 

A defendant may in the same manner demur to 
a discovery which may subject him to any thing 
in the nature of a forfeiture(i/) ; as where a disco- 
very was sought whether the defendant was edu- 
cated in the popish religion, by which he might 
have incurred the incapacities in the statute 11 
and 12 Will. III. (z) ; or whether a clergyman 
was presented to a second living, which avoided 
the first(«). 

But where a person against whom a commission 
of bankrupt had issued, had brought actions against 
the assignees under the commission, disputing its 
validity, and particularly insisting that he had not 
been a trader within the meaning of the bankrupt 
laws, and in those actions the validity of the com- 
mission had been established ; and the assignees 
filed a bill against him, stating these facts, and 
that being harassed by these actions, and threat- 
ened with other actions, they were not able to dis- 

(it) Att. Gen. v. Duplessis, Parker, Bac. Ab. 800 ; 1 Atk. 527; 2 Ves. 

144. 394. The 18 Geo. III. c. 60, the 31 

(x) 2 Atk. 393. Lucas v. Evans, Geo. III. c. 32, and the 43 Geo. III. 

3 Atk. 260 ; 2 Ves. 265. c. 39, do not entirely remove these 

(y") 3 Atk. 457(1). incapacities. 

(z) Jones V. Meredith, Com. 661 ; (a) Boteler v. AUington, 3 Atk. 

and see ib. 664 ; Smith v. Read, 3 453. 

(1) Lambert v. The People, 9 Cowen's R. 578 ; and see pages 194, 
195, ante. 



DEMURRERS. 259 

tribute the effects under the commission, and 
therefort) praying a perpetual injunction to re- 
strain further actions, and requiring a discovery 
amongst other things, of acts of trading, a demur- 
rer to that discovery was overruled(6). 

*If a defendant has in conscience a right [*199] 
equal to that claimed by a person filing a bill 
against him, though not clothed with a perfect legal 
title, this circumstance in the situation of the defend- 
ant renders it improper for a court of equity to com- 
pel him to make any discovery which may hazard 
his title; and if the matter appears clearly on the 
face of the bill, a demurrer will hold(c). The most 
obvious case is that of a purchaser for a valuable 
consideration without notice of the plaintiff's 
claim(<Z). Upon the same principle a jointress may 
in many cases demur to a bill filed against her for 
a discovery of her jointure deed, if the plaintiff is 
not capable of confirming, or the bill does not offer 
to confirm, the jointure, and the facts appear suffi- 
ciently on the face of the bill ; though ordinarily 
advantage is taken of this defence by way of 
plea(e). 

This arises from that singularity in the juris- 
prudence of this country, produced by the esta- 
blismcnt of the extraordinary jurisdiction of courts 
of equity distinct from the ordinary jurisdictions 

(b) Chambers v. Thomson, 1 Nov. (c) See Glegg v. Legh, 4 Madd. 

1793, rep. 4 Bro. C. C. 434, affirm- 193(1). 

ed on rehearing, March, 1794. See (d) 2 Ves. Jr. 458. Sroeet v. 

Protector and Lord Lumley, Har- Southcote, 2 Bro. C. C. 66. 

dres. 22. See also Selby v. Crew, 1 (e) Chamberlain v. Knapp, 1 Atk. 

Anstr. 504. 52. 2 Ves. 450 ; 2 Ves. 662. 

(1) Hartly v. O' Flaherty, 1 Beatty'a R. 77. And see the form of 
such a demurrer, Willis, 479. 



260 DEMURRERS. 

noticed in a former page, and necessarily creating 
a distinction between legal and equitable rights(/). 
Where the courts of equity are called upon to 
administer justice upon grounds of equity against 
a legal title, they allow a superior strength to 
the legal title when the rights of the parties are 
in conscience equal ; and where a legal title may 

be enforced in a court of ordinary jurisdic- 
[*200] tion *to the prejudice of an equitable title, 

the courts of equity will refuse assistance 
to the legal against the equitable title where the 
rights in conscience are equal. 

If the grounds on which a defendant might de- 
mur to a particular discovery appear clearly on 
the face of the bill, and the defendant does not de- 
mur to the discovery, but, answering the rest of 
the bill, declines answering to so much, the court 
will not compel him to make the discovery(^). 
But in general, unless it appears clearly by the 
bill that the plaintiff is not entitled to the discovery 
he requires, or that the defendant ought not to be 
compelled to make it, a demurrer to the discovery 
will not hold ; and the defendant, unless he can 
protect himself by plea, must answer. 

Where the sole object of a bill is to obtain a 
discovery, some grounds of demurrer, which if the 
bill prayed relief would extend to discovery as well 
as to the relief, will not hold. Thus a demurrer 
to a bill for a discovery merely will not hold for 
want of parties, for the plaintiff seeks no decree ; 
nor, in general, for want of equity in the plaintiff's 

(f) 2 Ves. 573, 574. P. Wms. 235. 1 Meriv. 401. See 

(g) See Wrottesley v. Bcndish, 3 below, chap. 2, sect, part 3. 



DEMURRERS. 261 

case for the same reason ; nor because the bill is 
brought for the discovery of part of a matter, for 
that is merely a demurrer, because the discovery 
would be insufficient. But it should seem a de- 
murrer would hold to a bill for discovery of seve- 
ral distinct matters against several distinct de- 
fendants. For though a defendant is always 
eventually paid his costs upon *a bill of [*201] 
discovery if both parties live, and the plain- 
tiff by amendment of his bill does not extend it to 
pray relief, yet the court ought not to permit the 
defendant to be put to any unnecessary expense, 
as either the plaintiff or defendant may die pend- 
ing the suit(^). 

After an answer to a bill of discovery, when time 
for excepting to it as insufficient is expired, the 
defendant may apply for costs as a matter of course 
(A), unless the plaintiff shall in the mean time have 
obtained an order to amend his bill ; which may be 
done either to obtain a fuller discovery, or if the 
case appearing on the answer will warrant the pro- 
ceeding, by adding to the bill a prayer for relief(i). 

Demurrers have hitherto been noticed with re- 
ference only to original bills. As every other kind 
of bill is a consequence of an original bill, many of 
the causes of demurrer which will apply to an ori- 
ginal bill will also apply to every other kind ; but 

(g-") See next page and notes (p) ceptions must be filed, has latterly, 

and (9). under special circumstances, been ex- 

(A) See 4 Ves. 746. Hewart v. tended. See Baring v. Prinsep, 1 

Semple, 5 Ves. 86. Noble v. Gar- Madd. R. 526. 

land, 1 Madd. 344. But, it seems (i) On this subject see Buticr- 

that the time within which the ex- loorth v. Bailey, 15 Ves. 358(1). 

(1) Also M'Dougall v. Miln, 2 Paige's C. iJ. 201. 



262 DEMURRERS. 

the peculiar form and object of each kind afford 
distinct causes of demurrer to each. Thus if a 
bill of revivor does not show a sufficient ground 

for reviving the suit(/i:), or any part of it 
[*202] (Z), either by or against(m) *the person 

by or against whom it is brought, the de- 
fendant may by demurrer show cause against the 
revival(w) (1). Indeed though the defendant does 
not demur, yet if the plaintiff does not show a title 
to revive, he will take nothing by his suit at the 
hearing(o) (2). A demurrer will also in many 
cases hold to a bill of revivor brought singly for 
costs(j9) ; the court in general not permitting a 
suit to be revived for that purpose only, except 
where the costs have been actually taxed before 
the abatement happened(g'). 

If a supplemental bill is brought upon matter 
arising before the filing of the original bill, where 
the suit is in that stage of proceeding that the bill 
may be amended, the defendant may demur (r). 

(A) Humphreys v. Incledon, Dick. 315. 10 Ves. 572. Jupp v. Geering, 

38. Harris v. Pollard, 3 P. Wms. 5 Madd. 375. 

348. (q) HaU v. Smith, 1 Bro. C. C. 

(l) 1 Eq. Ca. Ab. 3, 4. 438. Morgan v. Scudamore 2 Ves. 

(m) University College v. Fox- Jr. 313. S. C. 3 Ves. 195. Lowten v; 

tToft, 2 Ch. Rep. 244. Mayor and Commonalty of Colches- 

(n) 3 P. Wms. 348. ter, 2 Meriv. 113. 3 Madd. 377. 

(0) 3 P. Wms. 348. (r) Baldwin v. Mackown, 3 Atk. 
Cp) 2 Eq. Ca. Ab. 3. 2 Ves. Jr. 817. 2 Madd. R. 387(3) ; or, if the 

(1) Thornton v. Pellatt, 1 1 Price, 733. See the form of a demur- 
rer, Willis, 481. 

(2) It is said in Lewis v. Bridgman, 2 Sim. 465, that to prevent a 
suit from being revived, either a plea or demurrer must be put in to it ; 
and that an answer insisting upon the plaintiff's having no riglit is not 
sufficient. 

(3) Stafford v. Howlell, 1 Paige's C. R. 200. See the form of a de- 
murrer, Willis, 482. 



DEMURRERS. 263 

If a bill is brought as a supplemental bill upon 
matter arising subsequent to the time of filing the 
original bill, against a person who claims no inte- 
rest arising out of the matters in litigation by the 
former bill, the defendant to the bill thus brought 
as a supplemental bill may also demur ; especially 
if the bill prays that he may answer the matters 
charged in the former bill. These, how- 
ever, are grounds of demurrer arising*ra- [*203] 
ther from the plaintiff's having mistaken 
his remedy, than from his being without remedy. 

A cross-bill having nothing in its nature dif- 
ferent from an original bill, with respect to which 
demurrers in general have been considered, except 
that it is occasioned by a former bill, there seems 
no cause of demurrer to such a bill which will not 
equally hold to an original bill. And a demurrer 
for want of equity will not hold to a cross-bill filed 
by a defendant in a suit against the plaintiff in the 
same suit touching the same matter. For being 
drawn into the court by the plaintifi' in the origi- 
nal bill, he may avail himself of the assistance of 
the court, without being put to show a ground of 
equity to support its jurisdiction(5), a cross-bill 
being generally considered as a defence(/). 

A bill filed by the direction of the court for the 
purpose of obtaining its decree touching some mat- 

mattei should have arisen subse- Adams v. Dowding, 2 Madd. R. 53. 
quently, but be immaterial, the de- Ibid 388(1 J. 

fendant may also demur. See Milner (s) Doble v. Potman, Hardres. 
V. Lord Harewood, 17 Ves. 144, 160. 1 Eden. R. 190. 

(t) 3 Atkyns, 812. 



(1) Swany. Swan,! Price, 518. And see Bowyer v. Bright, 13 
Pneg, 316. 



264 DEMURRERSr. 

ter not in issue by a former bill, or not in issue be- 
tween the proper parties, does not seem liable to 
any peculiar cause of demurrer. Indeed, being 
exhibited by order of the court upon hearing of 
another cause there is little probability that such 
a bill should be liable, in substance, to any de- 
murrer. 

The constant defence to a bill of review for er- 
ror apparent upon a decree has been said to be by 
plea of the decree, and demurrer against opening 
the enrolment(M). There seems, however, no 
[*204] necessity for ^pleading the decree, if fair- 
ly stated in the bill(2) : the books of prac- 
tice contain the forms of a demurrer only to such a 
bill, and there are cases accordingly(a:)(3.) 

On argument of a demurrer to a bill of review 
where several errors in the decree have been as- 
signed, if the plaintiff should prevail only in one, 
the demurrer must be overruled, as one error will 
be sufficient to open the enrolment ; and on argu- 

(u) Dancer v. Exett, 1 Vern. 392. rolled in bar of the first bill which 

Smith V. Turner J 1 Vern. 273. 2 did not state the decree, but to have 

Atk. 534. See also 3 Atkyns, 627. demurred alone to the bill of review. 

O'Brien v. O'Connor, 2 Ball & B. And in Helbut and Philpot, in the 

146(1). House of Lords, 11 March, 1725, the 

(x) Slingsby v. Hale, 1 Ca. in Cha. defendant demurred alone to a bill of 

122. 1 P. Wms. 139 ; and see Jones review, and the demurrer was allow- 

V. Kenrick, 5 Bro. P. C. 244, and ib. ed, and the order siffirmed by the 

248 ; in which case the defendant ap- lords ; and see Denny v. Filmore, 1 

pears to have pleaded the decree en- Vern. 135. S. C. 2 Freeman, 172. 



(1) And see Webb v. Pell, 3 Paige's C. R. 368. For the form of a 
demurrer to a bill of review, see Willis, 483 ; 2 Equity Draftsman, 92, 
(2d edit.) 

(2) Webb V. Pell, 3 Paige's C. R. 368. 

(3) Lord Chancellor LifTord is reported to have said, in Lindsay v. 
Bell, Finlay's (Irish) Index, that a case cao hardly arise in which a de- 
murrer can be put in to a bill of review. 



DEMURRERS. 265 

ment of a demurrer to a bill of review for error 
apparent in the decree, the court has ordered the 
defendant to answer, saving the benefit of the de- 
murrer to the hearing, and on the hearing has 
finally allowed the demurrer(i/). 

Where the decree has been pronounced above 
twenty years, the length of time is good cause of 
demurrer(2;). 

Where any matter beyond the decree is to be 
offered against opening the enrolment, that mat- (, 
ter must be pleaded(a) ; and it has been ^^ 

said that length *of time must be pleaded [*205} 
to a bill of review, and that otherwise the 
plaintiff' will not have the benefit of exceptions, as 
infancy, coverture, or the like(6). A bill of review 
upon the discovery of new matter, and a supple- 
mental bill of the same nature, being exhibited 
only by leave of the court, the ground of the bill 
is generally well considered before it is brought ;' 
and therefore in point of substance it can rarely be 
liable to a demurrer. But if brought upon new 
matter, and the defendant should think that mat- 
ter not relevant, probably he might take advan- 
tage of it by way of demurrer, although the rele- 
vancy ought to be considered at the time leave is 

(y) Denny v. Fibner, 2 Freeman, murrer on the ground of length of 

172. time ; and it should seem that if the 

(z) Edwards v. Carroll, 2 Bro. ijlaintilT can allege any exception to 

P. C. 98, Toml. ed. ; and see Smythe a positive rule, he ought to do so by 

V. Clay, 4 Bro. C. C. 539, n. S. C. 1 his bill. In Lylton v. Lytton,4. Bro. 

Bro. P. C.453, Toml. ed. S. C. Ambl. C. C. 441, the exception was stated 

615. in the bill, and admitted by the an- 

(a) See Hartwell v. Tounsend, 2 swcr. If length of time must be 

Bro. P. C. 107, Toml. od. pleaded, yet the plaintiff can have no 

(6) Gregor v. Molesicorth, 2 Ves. benefit ot exception not stated in the 

109. See, however, Sherrington v. bill, unless it should be required that 

Smith, 2 Bro. P. C. G2, Toml. ed. the plea should be supported by aver- 

Gorman v. M'Cullock, 5 Bro. P. C. ments negativing every possible ex- 

597, Toml. ed. See 3 P. Wms. 287, ception, to which there seems to be 

note B, and post. p. 212, as to a dc- yreat objections. 

34 



26d DEMURRERS. 

given to bring the bill(&). Bills in the nature of 
bills of review do not appear subject to any pecu- 
liar cause of demurrer, unless the decree sought 
to be reversed does not affect the interest of the 
person filing the bill. If upon argument of a de- 
murrer to a bill of review the demurrer is 
[*206] *allowed, the order allowing it, being en- 
rolled, is an effectual bar to another bill 
of review(c). 

If upon the face of a bill to carry a decree into 
execution the plaintiff appears to have no right to 
the benefit of the decree, the defendant may demur. 

Bills in the nature of bills of revivor and sup- 
plement are liable to objections of the same sort 
as may be made to the kinds of bills of whose na- 
ture they partake. 

In addition to the several particular causes of 
demurrer applicable to particular kinds of bills, it 
may be observed that any irregularity in the frame 
of a bill of any sort may be taken advantage of by 
demurrer. Thus if a bill is brought contrary to 
the usual course of the court, a demurrer will hold 
(<Z). As where after a decree directing encum- 
brances to be paid according to priority, the plain- 
tiff, a creditor, obtained an assignment of an old 
mortgage, and filed a bill to have the advantage 
it would give him by way of priority over the de- 

(6) 2 Atkyns, 40. See what is {d) See Wortley v. Birkhead, 3 

stated in regard to a mere supple- Atk. 809. S. C. 2 Ves. 571. Ladj/ 

mental bill, 17 Ves. 148, 149. 2 Granville v. Kamsden, Bunb. 56. 

Madd. R. 61. And sec above 202, Earl of Darlington v. Pulteney, 3 

note (r). Ves. 386. Fletcher v. Tollctt, 5 

(c) See Denny v. filmer, 2 C a., in Ves. 3. Ogilvie v. Heme, 13 Ves. 

Cha. 133. S. C. 1 Vern. 135, and 563. Maule v. Duke of Beaufort, I 

ib. 417. Pitt V. Earl of Ar glass, ib. Rus9. R. 349. 
441. Wools V. Tucker, 2 Vern. 120. 



DEMURRERS. 267 

mands of some of the defendants(c). This was a 
bill to vary a decree, and yet was neither a bill of 
review, nor a bill in nature of a bill of review, 
which are the only kinds of bills which can 
be brought to affect or alter a *decree(/), [*20'7] 
unless the decree has been obtained by 
fraud(^). So if a supplemental bill is brought 
against a person not a party to the original bill, 
praying that he may answer the original bill, and 
no reason is suggested why he could not be made 
a party to the original bill by amendment, he may 
demur(A). If an irregularity arises in any alte- 
ration of a bill by way of amendment, it may also 
be taken advantage of by demurrer. As if a plain- 
tiff amends his bill, and states a matter arisen sub- 
sequent to the filing of the bill(e), which conse-' 
quently ought to be the subject of a supplemental 
bill, or bill of revivor. But if a matter arisen sub- 
sequent to the filing of the bill, and properly the 
subject of a supplemental bill, is stated by amend- 
ment^ and the defendant answers the amended bill, 
it is too late to object to the irregularity at the 
hearing(/c). For as the practice of introducing 
by supplemental bill matter arisen subsequent to 

(e) 3 Atk. 811. Ves. 564. 

(/) Arg'io 3 Atk. 811. Read v. {h) Baldwin v. Mackown, 3 Atk. 

Hambey, 1 Ca. in Clia. 44. S. C. 2 817. 

Freem. 179. 13 Ves. 564. (z) 1 Atkyns, 291. Pilkin^tonx. 

(a-) Arg^'o 3 Atk. 811. Galley v. Wignall, 2 Madd. 210(1). 

Baker, Ca. t. Talb. 199. Manaton (k) Belchitr against Pearson, at 

V. Molesworth, 1 Eden. R. 25. 13 the Rolls, 13 July, 1782. 

(1) There is llie form of a demurrer io such a case in 2 JS^MJ^y 
Draft. 91, (2d edit.) ; and a note added whereby it appears that the 
form there given was drawn according to a precedent of a similar de- 
murrer made out by Lord Redesdale when at the bar. 



268 DEMURRERS. 

the institution of a suit has been estabhshed mere- 
ly to preserve order in the pleadings, the reason 
on which it is founded ceases when all the pro- 
ceedings to obtain the judgment of the court have 
been had without any inconvenience arising from 

the irregularity(A:). 
[*208] * Having thus considered the several 

grounds of demurrer, it may be proper to 
observe some particulars with respect to the frame 
of demurrers, the manner in which they are offered 
to the court, and the manner in which their vali- 
dity may be determined, or their consequences 
avoided. 

A demurrer must be signed by counsel(Z) ; but 
is put in without oath, as it asserts no fact, and re- 
lies merely upon matter apparent upon the face of 
the bill(m). It is therefore considered, that the de-: 
fendant may, by advice of counsel, upon the sight 
of the bill only, be enabled to demur thereto(w) ; 
and for this reason it is always made the special 
condition of an order giving the defendant time to 
demur, plead or answer to the plaintiff's bill, that 
he shall not demur alone. Whenever, therefore, 
the defendant has obtained an order for time, and 
is afterwards advised to demur, he must also 
plead to or answer some part of the bill(<?). It 

(fc) See above, p. 202. be considered within the meaning of 

(l) See Ord.in Cha. 172. Ed. Bea. this term, see Roberts v. Hartley, 1 

(m) 2 Ves. 247. 1 Madd. R. 236. Bro. C. C. 66 ; De Minkuitz v. Ud- 

(n) Ord. in Cha. 172. Ed. Bea. net/, 16 Ves. 355 ; Barber v. Crau- 

(o) If the defendant should apply shaw, 6 Madd. 284, unless, perhaps, 

for time to answer generally, it would it were of a description not required 

be presumed that his case does not re- to be put in upon oath. See Phillip» 

quire the usual indulgence to the ex- v. Gibbons, 1 Ves. & B. 184 ; and 

tent mentioned in the text ; and the see Anon. 2 P. Wms. 464; 3 P. 

order would be drawn up according- Wms. 81 ; but the defendant would 

ly. See 10 Ves. 448. 1 Ves. & B. not be allowed to demur alone, Ken- 

186, and, lie would be bound to an- rick v. Clayton, 2 Bro. C. C. 214 ; 

Bwer, 10 Ves. 446 ; but a plea would S. C. Dick. 685 ; or even to answer 



DEMURRERS. 269 

has been held, that ^answering to some [*209] 
fact immaterial to the cause, and deny- 
ing combination(o), do not amount to a compli- 
ance with the terms of such an order : and there- 
fore, upon motion, a demurrer accompanied by 
such an answer has been discharged(p). This 
rule has been probably established under a notion 
that time is not necessary to determine whether a 
defendant may demur to a bill or not, and a sup- 
position that a demurrer may be filed merely for 
delay. But whether a bill may be demurred to is 
sometimes a subject of serious and anxious consi- 
deration ; and the preparation of a demurrer may 
require great attention, as if it extends in any 
point too far it must be overruled. Great incon- 
venience therefore may arise from a strict adhe- 
rence to this rule. For it often happens that a de- 
fendant cannot answer any material part of the 
bill without overruling his demurrer ; it being held 
that if a defendant answers to any part of a bill to 
which he has demurred he waives the benefit 
of the demurrer(^) ; or if he pleads to any 

and demur. Taylor v. Milncr, 10 want of equity by parties not interest- 

Ves. 444 ; Mannw King, 18 Ves. ed, must be specific. Smith v. Snow, 

297, except under peculiar circum- 3 Madd. 10. 

stances, and upon leave granted by (p) Stephenton v, Gardiner, 2 P. 

the court, on a special application for Wms. 286 ; 4 Vin. Abr. 442 ; Lee 

that purpose, see Bruce v. Allen, 1 v. Pascoe, 1 Bro C. C 78; and see 

Madd. R. 556 ; Sherwood v. Clark. Kcnrick v. Clayton, 2 Bro. C. C. 

9 Pri. Ex. R. 259(1). ' 214 ; S. C. Dick. G85 ; Z^ansdoicn v. 

(0) As to the necessity of denying Elderton, 8 Ves. 526 ; Tomkin v, 
a general charge of combination, see Lethbridge, 9 Ves. 178 ; 10 Ves, 
ab. p. 40. The charge of combina- 446, 447, 448 ; 2 Ves. & B. 123. 
tion, in order to be material, with the {q) See Hester v. Weston, 1 Ves. 
view of preventing a demurrer for 463 ; Jones v. Earl of Strafford, 3 

(1) By the New-York practice, after a g'sneral order for further 
time to answer, (under the 12.Sth rule,) the defendant cannot put in a 
demurrer, except on special leave of the court. Burrall v. Raine- 
teaux, 2 Paige's C. R.33\. 



270 DEMURRERS. 

[*210] part of *a bill before demurred to the plea 
will overrule the demurrer(r). For the 
plaintiff may reply to a plea or answer, and there- 
upon examine witnesses, and hear the cause : but 
the proper conclusion of a demurrer is to demand 
the judgment of the court whether the defendant 
ought to answer to so much of the bill as the de- 
murrer extends to, or not(5). The condition, that 
the defendant shall not demur alone, ought there- 
fore, perhaps, to be considered liberally ; and it 
has been formerly said, that the court will not in- 
cline to discharge a demurrer if the defendant de- 
nies combination only where he cannot answer fur- 
ther without overruling his demurrer(/). Indeed 
any material answer must in many cases overrule 
the demurrer ; so that giving a defendant time to 
demur, plead, or answer, not demurring alone, is 
often in effect giving leave to do a thing, but clog- 
ging the permission with a condition which makes 
it nugatory ; and though the rule was first adopt- 
ed upon a reasonable ground to prevent unneces- 
sary delay, it may, if strictly observed, contradict 
the maxim, that a court of equity ought not for form 
sake to do a great injustice(M). However the mo- 
dern practice is according to the original strict- 
ness of the rule(ar); and it maybe better, where the 

p. Wms. 79 ; Abraham v. Dodgson, (u) 1 Ves. 247. 

2 Atk. 157(1). (:r) Attorney Gen. v. Jenner, in 

(r) Dormer V. Fortescue, 2 Atk. Ch. 9 Nov. 1738; Sir John Dyne- 

282(^2). Icy Gooderc against Dean and Chap- 

(s) 3 P. Wms. 80. ter of Worcester, in Exchequer, 

(t) See Done v. Peacock, 3 Atk. 1777 ; Lee against Pascoe, in Chan- 

726. See above, p. 181, note (6). eery. East, 1780 ; 1 Bro. Ch. Ca. 77 ; 

(1) Clark V. Phelps, 6 J. C. R.2\4. 
■ (2) Clark V. Pkeljys, 6 J. C. R. 214; Souzer v. De Meyer, 2 
Paige's C. R. 574. And if lie answers as to those matters which by 
his plea he has declined to answer, lie overrules the plea. lb. 



DEMURRERS. 271 

case requires it, to relax the rule *upon [*211} 
special application to the court(x) than to 
permit it to be evaded(i/). Indeed in some cases 
an answer to any part of the bill may overrule the 
demurrer ; for if the ground of demurrer applies to 
the whole bill, the answering to any part is incon- 
sistent(z) ; and therefore when the ground of de- 
murrer was the general impropriety of the bill, 
and that the defendant ought not therefore to be 
compelled to answer it, his answer to an immaterial 
part, in compliance with the order for time which 
he had obtained, overruled his demurrer(«). 

As a demurrer relies merely upon matter appa^ 
rent on the face of the bill, so much of the bill as 
the demurrer extends to is taken for true(6) ; thus 
if a demurrer is to the whole bill the whole(c) is 
taken for true ; if it is to any particular discovery, 
the matter sought to be discovered, and to which 
the demurrer extends, is taken to be as stated in 
the bill ; and if the defendant demurs to relief only, 
the whole case made by the bill to ground 
the relief prayed is considered *as true. [*2123 

8Ves.527; lOVes.447. See above, (a) Ruspiniy. Vickery, in Chan. 

pp. 208 and 209, and notes (o), (p), 16 Jan. 1793. 

and (<?). (6) 2 Ves. & Bea. 95 ; 1 Madd. 

(x) And this, upon a special R. 565(1). 

ground, the court will do. See above, (c) That is, every thing necessary 

p. 209, note (n). to support the plaintiff's case which 

(y) It seems that very little by way is well charged in the bill. 1 Ves. 
of answer will satisfy the terms of the 426, 427 ; 1 Ves. Jr. 289. Facts on 
order ; but that the court considers a demurrer are taken to be true ; that 
the practice in this respect to be is, facts which are well and material- 
guarded by the honor of counsel, ly alleged. Lord Hardwicke in But- 
See TomA-m V. Lethbridge, 9 Ves. lerw. Royal Exchange Assurance, \n 
178. 11 Ves. 73. Chan. 22 Nov. 1749; 1 Ves. Jr. 78. 

(z) Tidd V. Clare, Dick. 712. 289 ; 3 Meriv. 503 ; 1 Madd. 565(2). 

(1) Pryor v. Adams, Call's R. 391. 
2) Braband v. Hoskins, 3 Price, 31. 



372 DEMURRERS. 

A demurrer is therefore always preceded by 
a protestation against the truth of the matters 
contained in the bill ; a practice borrowed from 
the common law, and probably intended to avoid 
conclusion in another suit. 

The admission by a demurrer of the truth of the 
facts stated in the bill has been considered as one 
reason why a defence founded on length of time, 
though apparent on the face of the bill, without any 
circumstance stated to avoid its effect, cannot gene- 
rally be made by demurrer(c). Upon a demurrer to 
a bill brought to impeach transactions which had 
passed twenty-eight years before the bill was filed, 
on the ground of fraud, without any sufficient cause 
shown for not instituting the suit sooner, it was said 
by the court that the party who demurs admits 
every thing well pleaded, in manner and form as 
pleaded ; and a demurrer ought therefore in a court 
of law to bring before the court a question of law 
merely ; and in a court of equity, a question of law 
or equity merely. The demurrer therefore must be 
taken to admit the whole case of fraud made by the 
bill ; and the argument to support it must be, not 

that a positive limitation of time has barred 
[*213] the suit *for that would be a pure question 

of laws but that from long acquiescence it 

(c) But, if the plaintiff's case be lion of a mortgage, after quiet pos- 
se stated in the bill as to show that session b}' the mortgagee of more 
his claim is barred by lapse of lime, than twenty years, (see Aggas v. 
and no ground of exception, as in- Pickerell, 3 Atk. 225; and see 2 
fancy, or the like, be alleged therein, Ves. Jr. 84,) the defendant may de- 
it seems that, contrary to the opinion mur. Beckfcrd v. Close, cited 3 
of Lord Hardwicke, expressed in a Bro. C. C. 644, 4 Ves. 476, ib. 479; 
case in which the suit was for redemp- Foster \. Hodgson, \'i \cs. 180(1). 

( 1 ) See 2 Revised Statutes, JV". F. 30 ! , 



DEMUKREKS. 273 

should be presumed that the fraud charged did not 
exist, or that it should be intended that the plaintiff 
had confirmed the transaction, or had released or 
submitted upon such consideration as to bar himself 
from the general equity stated in the bill. This 
must be an inference of fact, and not an inference 
of law ; and the demurrer must be overruled, be- 
cause the defendant has no right to avail himself 
by demurrer of an inference of fact, upon matter 
on which a jury in a court of law would collect 
matter of fact to decide their verdict, if submitted to' 
them, or a court would proceed in the same man- 
ner in equity. What limitation of time will bar a 
suit where there is no positive limitation, or under 
what circumstances the lapse of time ought to 
have that effect, must depend on the facts of the 
particular case, and the conclusion must be an in- 
ference of fact, and not an inference of law(d!), 
and therefore cannot be made on a demurrer(e). 

A demurrer must express the several causes 
{f) of demurrer(^)(l) ; and in case the de- 

(d) See Cuthhert v. Creasy, 6 was allowed by the council, present 
Madd. 189. Kenyan, M. R. after consideration. — 

(e) Ld. Deloraine v. Browne, in (/) See 3 Madd. 8. 1 Jac. R. 467; 
Chan. 13 and 14 June, 1792. 3 Bro. and see Harrison v. Hogg, 2 Ves. Jr. 
C. C. 633. But see p. 204, as to dc- 323. 

murrers to bills of review. In Tohin (g) Peachie v. Twycrosse, Cary 

». Beckford, on appeal from Jamaica, Rep. 113. Ord. in Cha. ed. Bea. 77'. 

26 July, 1784, a demurrer to al>ill to 173. 
redeem on account of length of time 



(1) KaJi V. Smith, 6 Day's R. 421 ; 5lli Rule of South CiroUnu 
Pracl. I Dessau, 57. It must not be a speaking demurrer. A speak- 
ing demurrer is, where a fact is introduced which is necessary to sup- 
port the demurrer. Davies v. Williams, 1 Sim. 7. It is a general 
rule, that a speaking demurrer is bad ; i. c. when it contains argument 
ia the body of it ; if, for instance, the demurrer says, " in or about Iht 
"year 1770, tr/wc/t is upwards of Iwentij years before the billjiled." 

35 



274 DEMURRERS. 

[*214] murrer does not *go to the whole bill, it 
must clearly express the particular parts 
of the bill demurred to{h). If a demurrer is gene- 
ral to the whole bill, and there is any part, either 
as to the relief or tiie discovery, to which the de- 
fendant ought to put in an answer, it was general- 
ly considered that the demurrer being entire must 
beoverruled(i). But there are inslances(A;;) of al- 
lowing a demurrer in part(/); and a defendant 

(/i) Chetwyndy. Lindon, 2 Ves. part, (8 Ves. 403; 11 Vcs. 70; 17 
451. Devonsher v. JSewenham, 2 Ves. 280)(2), it a|)pcars that where 
Sch. and Lefr. 199. And this must such a mode of defence has been re- 
be done, not by way of exception, as sorted to by several defendants joint- 
by demurring to all except certain ly, it may be good as to some of them 
parts of the bill, but by [)ositive defi- and bad as to the others, see 8 Ves. 
nition of the parts to which he there- 403, 404. 

by seeks to avoid answering. See (k) Koltv. Lord Somerville,2 Eq. 

Robinson v. Thompson, 2 Ves. and Ca. Ab. 759 ; Raddiffe v. Fursvian, 

Bea. 118. Weatherhead \. Black- 2 Bro. P. C. 514, Toml. ed. 

burn, 2 Ves. and Bea. 121. Sed vid. (OC-^) Although this is not now 

Hicks V Raincock, 1 Cox R. 40. the practice, the court will in some 

(i) 1 Ves. 248. Earl o? Suffolk v. instances, on the argument of a de- 

Chreen, 1 Atk. 450. Todd v. Gee, murrer, grant leave, upon overruling 

17 Ves. 273. 1 Swanst. 304. 1 Jao. it, to the defendant to put in another 

R. 467(1). But though a demurrer less extended, (^Thorpe v. Macauley, 

cannot be good in part and bad in 5 Madd. 218), and will, even after it 



(2 Ves. Jr. 83.) A demurrer, also, to any thing but what appears on 
the face of the bill, is considered as a speaking demurrer. (2 Ku, 
245.) Lube, 340. And as to other cases upon speaking demurrers, 
see Cawthorn v. Charlie, 2 Sim. Sf Stu. 129; Davis v. William*, I 
Sim. 8. 

(1) And see Verplanck v. Caines, 1 J. C. R. 57 ; Le Roy v. Veeder, 
ou appeal, 1 J. C. 417; Laight v. J\lorgan, on appeal, 1 J. C 429 ; 
S. C. 2 C. C. E. 344 ; Kimberly v. Sells ,3 J. C. R. 497 ; Livingston 
V. Livingston^ 4 lb. 294 ; Le Roy v. Servis, \ C. C. E. \ ; Higgin- 
botham v. Barnel, 5 lb. 184; Brian v. Brian, Vernon Sf Scriven't 
(Irish) R. 84; Graves v. Downey, 3 Monroe's R. 125 ; Castleman v. 
Veitch, 3 Randolph's R. 598 ; Cheetham v. Crook, 1 Jl'Cleland Sf Y. 
307. 

(2) But see Verplanck v. Caines, supra. It has been said, in Ken- 
tucky, that a demurrer to a bill may be overruled in part and sustained 
iD part. Pope v. Stansbury, 2 Bitb, 484. 



DEMURRERS. 275 

may put in separate demurrers to separate and dis- 
tinct parts of a bill for separate and distinct 
causes(m). For the same ground of demurrer 
frequently will not apply to different parts of a 
bill, though the whole may be liable to de- 
murrer ; and *in this case one demurrer [*215] 
may be overruled upon argument, and an- 
other allowed(^«). 

If the plaintiff conceives that there is not suf- 
ficient cause apparent on his bill to support a de- 
murrer put in to it, or that the demurrer is too ex- 
tensive, or otherwise improper, he may take the 
judgment of the court upon it ;(3) and if he con- 
ceives that by amending bis bill he can remove the 
ground of demurrer, he may do so before the de- 
murrer is argued, on payment of costs, which vary 
according to the state of the proceedings(o). But 

has been overruled, sometimes be in- Strafford, 3 P. Wnis. 148(2). 

duced to grant a similar indulgence. (o) Anon. Mosely, 301. 1 Ves. Jr. 

Baker v. Mellish, 11 Ves. 68(1). 448. Anon. 9 Ves. 221. 1 Aim. Cur. 

(m) 3 P. Wms. 149. Roberdeau v. Cane. 565. 1 Harrison Chan. Pract. 

Rous, 1 Atk. 544. 39. 

(n) North V. Earl and Countess of 

(1) This is not allowed in the New-York chancery, 49^/t Rule. 
See Rawley v. Eccles, 1 Sim. Sf Stu. 511. 

(2) Same principle recognised in Little v. Archer, 1 Hogan, 55. 

(3) Where the defendant files a faulty and informal demurrer to a 
bill in chancery, the complainant is not entitled to have it dismissed, but 
must set it down for argument. Hurst v. Hurst, C. C. U. S. Penn. 
Apr. 1806. JIS. Coxe's Dig. p. 145. 

There should be no joinder in demurrer. The cause is to be set 
down for argument of the demurrer. Beauchamp v. Gibbs, 1 Bibb's 
(Kentucky) R. 481. By the practice of the State of New-York, 
either party may Dotice a demurrer for argument. 47f/i Rule. 

On the argument, the complainant is bound by the case stated in the 
bill in relation to the discovery sought, and will not be allowed to main- 
tain his right to discovery upon a suggestion ore tenus at the bar not 
consistent with the case made io the bill. Little v. Archer, supra. 



276 DEMURRERS. 

after a demurrer to the whole of a bill has been 
argued and allowed, the bill is out of court, and 
therefore cannot be regularly amended(p). To 
avoid this consequence the court has sometimes, 
instead of deciding upon the demurrer, given the 
plaintiff liberty to amend his bill, paying the costs 
incurred by the defendant; and this has been fre- 
quently done in the case of a demurrer for want 
of parties(5'). Where a demurrer leaves any part 
of a bill untouched, the whole may be amended 
notwithstanding the allowance of the 
[*216] ^demurrer ; for the suit in that case con- 
tinues in court, the want of which cir- 
cumstance seems to be the reason of the contrary 
practice where a demurrer to the whole of a bill 
has been allowed. A demurrer being frequently 
pn matter of form is not in general a bar to a new 
bill ; but if the court upon a demurrer has clearly 
decided upon the merits of the question between 

(j>) See above, p. 14, note (i) Lord Edwards \ . Edwards, 6 Madd. 255 ; 

Coningshy v. Sir Jos. Jekyll, 2 P. and it seems probable that, even ayifer 

Wms. 3tKJ, and note, and Watkins v. allowance, the court might be induced, 

JSush, Dick. 701(1). under some circumstances, to set the 

(q) And the court, upon allowing cause on foot again, and to authorize 

a demurrer, will sometimes give the an amendment of the bill. See 11 Yes. 

plaintLft" leave to amend, see Mayor, 72(2). 
<J-c. of London, v. Levy, 8 Ves. 398 ; 



(1) Also Lyon v. Tallmadge, 1 J. C. R. 184. 

(2) Also Jilarshall v. Lovetass, Cameron «Sr JS'orwnod's (North Caro- 
lina) iJ. 239. 264; Broulhin v. Lovelass, lb. 520; Rose v. King, 4 
Hen. £f J\lunf. 157; Lyon v. Tatlmadge, supra,; Milligan v . Mii- 
ledge, 3 Cranck, 220. It seems, that in Kentucky a bill will be dis- 
missed for want of parties; although it will be done without prejudice. 
Barry v. Rogers, 3 Bibb, 314 ; Foster v. Hunt, lb. 33 ; Caldwell v. 
Hawkins, 1 Litl. 214. If a demurrer is overruled, the complainant 
may, wilhin ten days thereafter, amend his bill of course and without 
costs. 43d Rule JV. Y. Chancery. 



DEMURRERS. 277 

the parties, the decision may be pleaded in bar of 
another suit(r). 

A demurrer being always upon matter apparent 
upon the face of the bill, and not upon any matter 
alleged by the defendant, it sometimes happens 
that a bill, which, if all the parts of the case were 
disclosed, would be open to a demurrer, is so art- 
fully drawn as to avoid showing upon the face of 
it any cause of demurrer. In this case the defend- 
ant is coQipelled to resort to a plea, by which he 
may allege matter which if it appeared on the 
face of the bill would be good cause of demurrer. 
For in many cases what is a good defence by way 
of plea is also good as a demurrer, if the facts ap- 
pear sufficiently by the bill(5). And if a demur- 
rer should be overruled on argument because the 
facts do not sufficiently appear on the face of the 
bill, defence may be made by plea, stating the 
facts necessary to bring the case truly before the 
court, though it has been said that the court would 
not permit two dilatories(<). And after 
*a plea overruled, it is said that a demur- [*217] 
rer was allowed, bringing before the court 
the same question in substance as was agitated in 
arguing the plea(z«). But after a demurrer has been 
overruled a second demurrer will not be allowed 
{x) ; for it would be in effect to rehear the case 

(r) See the cases upon demurrers doubted whether this case has not 

to bills of review cited above, p. 205, been mistaken by the reporter, and 

note(a). whethi r the question was not on ex- 

(s) See Hetley, 139. But see 3 ceptions to an answer. See 2 Ves. 

Atk. 2-26. 491, 492. 

(0 Hudson V. Hudson, in Chan. (.r) See 2 Bro. C. C. 66; and see 

23 April, 1734. Reported, 1 Sim. & above, p. 214, note(/). Where, how- 

Stu. 512, note. Rowley v. Eccles, 1 ever, a demurrer was informal in its 

Sim. & Stu. 511. frame, but good in substance, it was 

(li) E. India Company v. Camp- overruled, with liberty to the defend- 

J>«i, I Vesr. 246. But it may be ant to file another. See Devonvher 



278 



DEMURRERS. 



on the first demurrer ; as on argument of a demur- 
rer, any cause of demurrer, though not shown in 
the demurrer as filed, may be alleged at the bar, 
and if good will support the demurrer(i/). 



V. Newenham, 2 Sch. & Lefr. 199. 
And, in consequence of the modern 
doctrine, that a defendant who sub- 
mits to answer must in general an- 
swer fully, see below, ch. 2, sect. 2, 
part 3(1), this court, in some instan- 
ces, on overruling a demurrer to dis- 
covery, instead of giving the defend- 
ant liberty to insist by answer that he 
is not bound to make the disclosure 
required, will give him liberty to file 



another less extensive. See Thorpe 
V. Macaulcy, 5 Madd. 218. 

(y) As to demurrers ore tenus, see 
Ptjle V. Price, G Ves. 779. 8 Ves. 
408. Dummer v. Corporation of 
Chippenham, 14 Ves. 245. 17 Ves. 
216 ; Alt. Gen. v. Moses, 2 Madd. R. 
294. 1 Swanst. 288 ; Knye v. Moore, 
1 Sim. & Stu. 61 ; Hook v. Dorman, 
1 Sim. & Stu. 227(2). 



(1) Page 306. 

(2) Garlick v. Strong, 3 Paige's C. R. 440. 



♦CHAPTER II. [*218] 

SECTION II. 
PART II. 

Of Pleas. 

In treating of pleas the same order may be con* 
veniently pursued as has been already used in 
treating of demurrers. Pleas to original bills will 
therefore be first considered, and under that head 
the nature of pleas in general, and the principal 
grounds of plea to every kind of bill, will necessa- 
rily be noticed ; the distinct pleas applicable pe- 
culiarly to the several other kinds of bill will be 
next mentioned ; and in the third place the frame 
of pleas in general, and the manner in which their 
validity may be determined, will be considered. 
Pleas to original bills will also be considered under 
the two heads of pleas to relief and pleas to disco- 
very only, and these will necessarily involve the 
consideration of pleas to bills of discovery merely. 

A demurrer has been mentioned to be the proper 
mode of defence to a bill when any objection to 
it is apparent on the bill itself, either from matter 
contained in it, or from defect in its frame, or in 
the case made by it. When an objection to a bill 
is not apparent on the bill itself(2;), if the 
defendant means *to take advantage of it, [*219J 
he ought to show to the court the matter 
which creates the objection, either by answer, or 

(«) See BiUing v. Flight, IMadd. R. 230. 



280 PLEAS. 

by plea, which has been described as a special an- 
swer, showing or relying upon one or more things 
as a cause why the suit should be either dismis- 
sed, delayed or barred(a)(l). The defence pro- 
per for a plea is such as reduces the cause, of 
some part of it, to a single point(6), and from 
thence creates a bar to the suit, or to the part to 
which the plea applies(c). It has been observed 
that the end of a plea is to save to the parties the 
expense of an examination of witnesses at large ; 
and that therefore it is not every good defence in 
equity that is good as a plea : for that where the 
defence consists of a variety of circumstances 
there is no use of a plea, as the examination must 
still be at large ; and the effect of allowing a plea 
would be, that the court would give judgment on 
the circumstances of the case before they were 
made out by proof(£Z). 

(o) Prac. Reg. 324. Wy. ed. 2 (d) Chapman v. Turner, 1 Atk. 
Sch. & Lefr. 725. 1 Madd. R. 194. 54. S. C. 1 Harr. Chan. Prac. 35&. 



s 



1 Atk. 54. 15 Ves. 82. 211^2). 2 Bligh, P. C. 614. 
2Bligh.P. C.614^2). 



(1) The correctness of this definition of a plea recognised and illus- 
trated by Lube-, p. 238 ; and see Lord Drogheda v. Malone, Finlay'$ 
Digest, 449. Carroll v. Waring, 3 Gill £(■ Johns. 491. Asa de- 
murrer collecis the negative rule of law from the complainant's own 
statement, so the plea, on the other hand, deduces the same conclusioQ 
from a new statement by the defendant. Lube. 341. 

(2) Goodrich v. Pendleton, 3 J. C. R. 384. It must be perfect id 
itself, so that, if true in fact, it will put an end to the cause. Allen v. 
Randolph, 4 lb. 693 ; Lord Drogheda v. JSlalone, supra. Where a 
defence consists of a variety of distinct facts and circumstances, there 
can be no saving by plea. Loud v. Sergeant, 1 Edwards' V. C. Re- 
ports, 164. 

..A plea will be overruled if it does not set forth any new matter, al- 
though the objection raised by it would have been valid if it had been 
urged by way of demurrer. Cosine v. Graham, 2 Paige's C. R. 177. 



PLEAS. 281 

Pleas have been generally considered as of three 
sorts; to the jurisdiction of the court; to the per- 
son of the plaintiff or defendant; and in bar of the 
suit(l). As they have been usually arranged under 
these heads, it may be convenient to consider them 
in some degree with reference to that arrange- 
ment ; but the order before observed in treating of 
demurrers may be at the same time pur- 
sued; and pleas may *be considered with [*220] 
reference to the several grounds already 
mentioned on which defence may be made to a 
bill. 

The objections to the relief sought by an origi- 
nal bill which can be taken advantage of by way 
of plea, are nearly the same as those which may be 
the subject of demurrer; but they are rather more 
numerous, because a demurrer can extend to such 
only as may appear on the bill itself, whereas a 
plea proceeds on other matter. The principal are, 
I. That the subject of the suit is not within the ju- 
risdiction of the court of equity : II. That some 
other court of equity has the proper jurisdiction : 
III. That the plaintiff" is not entitled to sue by 
reason of some personal disability : IV. That the 
plaintiff' is not the person he pretends to be, or does 
not sustain the character he assumes : V. That the 
plaintiff has no interest in the subject, or no right to 
institute a suit concerning it : VI. That he has no 
right to call on the defendant concerning it : 
VII. That the defendant is not the person he is al- 



(1) Mr. Beames, however, very properly, adds a fourth class, which 
he terms to the bill. Willis. 486, note ia). 

36 



282 PLEAS. 

leged to be, or does not sustain the character he is 
alleged to bear : VIII. Tliat the defendant has not 
that interest in the subject which can make him 
liable to the demands of the plaintiff: and IX. That 
for some reason, founded on the substance of the 
case, the plaintiff is not entitled to the relief he 
prays. Of these the second is the plea generally 
termed a plea to the jurisdiction of the court ; and 
the third, the fourth, and the seventh, are treated 

as pleas to the person of the plaintiff and 
[*221] defendant ; *the others are considered as 

pleas in bar of the suit: X. The deficiency 
of a bill to answer the purposes of complete justice 
may also be shown by plea, which may be consi- 
dered as in bar of the suit, though perhaps a tem- 
porary bar only. XI. The impropriety of unne- 
cessarily multiplying suits may be the subject of 
plea, which is also in bar of the suit : but the in- 
convenience which may arise from confounding 
distinct matters in the same bill, as it must be 
apparent on the bill itself, unless very artful- 
ly framed, can in general only be alleged by de- 
murrer. 

Those pleas which are commonly termed pleas 
to the jurisdiction of the court do not dispute the 
rights of the plaintiff in the subject of the suit, or 
that they are fit objects of the cognizance of a 
court of equity, but simply assert that the court of 
chancery is not the proper court to take cognizance 
of those rights. Pleas to the person of the plain- 
tiff also do not dispute the validity of the rights 
which are made the subject of the suit, but object 
to the plaintiff that he is by law disabled to sue in 



pi.EAs. 283 

a court of justice, or cannot institute a suit alone ; 
or that he is not the person he pretends to be, or 
does not sustain the character he assumes. Pleas 
in bar are commonly described as allegations of 
foreign matter, whereby, supposing the bill so far 
as it is not contradicted by the plea(r?) to be true, 
yet the suit, or the part of it to which the plea ex- 
tends, is barred(/). But this description perhaps 
does not comprise every kind of plea, or 
*does not mark the distinctions between [*^222] 
the different kinds with sufficient accuracy. 

I. The general objects of the jurisdiction of a 
court of equity, and the manner in which a want 
of jurisdiction may be alleged by demurrer, when 
a bill does not propose to attain any of those ob- 
jects, or it is apparent on the face of it that none 
can be attained by it, have been already mentioned. 
A case which is not really such as w ill give a court 
of equity jurisdiction cannot easily be so disguised 
in a bill as to avoid a demurrer ; but there may 
be instances to the contrary ; and in such cases it 
should seem a plea of the matter necessary to show 
that the court has not jurisdiction of the subject, 
though perhaps unavoidably in some degree a ne- 

(c) 2 Atk. 51. (/) Prac. Reg. 327. ^Vy. cd. 1 

Madd. R. 194(1J. 



(1) The rules whicli have been adopted in England in relation to 
pleas in bar to bills in eqtiity, when resorted to by defendants, are con- 
sidered as applicable in the equity courts of Maryland. Chase v. 
JShDonald, 7 Harris S( Johnson, 160. A plea in bar to a bill in 
equity, denying part of the material facts stated in the bill, is not good. 
A mere denial of facts is proper for an answer, but not for a plea 
JdUUgcm, V. JUiUedge, 3 Cranck, 220. 



284 PLEAS. 

gative plea, would hold(«'). Thus, if the jurisdic- 
tion was attempted to be founded on the loss of 
an instrument, where, if the defect arising from 
this supposed accident had not happened the courts 
of ordinary jurisdiction could completely decide 
upon the subject, perhaps a plea, showing the ex- 
istence of the instrument, and that it was in the 
power of the plaintiff to obtain a production of it, 
ought to be allowed, though instances of this sort of 
plea may not occur in practice. For it seems high- 
ly unreasonable that a plaintiff by alleging a false- 
hood in his bill should be permitted to involve a de- 
fendant in the expense of a suit inequity though the 

bill may finally be dismissed at the hearing 
[*223] of the cause, if the defendant answers *the 

case made by it, and enters into his defence 
at large. No authority, however, occurs to support 
such a plea(/i) ; and as there is little disposition in 
the courts of equity to countenance those defences 
which tend to prevent the progress of a suit to a 
hearing in the ordinary way, whatever the expense 
of the proceeding may be, it would hardly be pru- 
dent to endeavour thus to put a stop to an attempt 
to transfer the jurisdiction of a suit from the ordi- 
nary courts to a court of equity ; and indeed the 
guard put upon cases of this kind, by requiring the 
affidavit of the plaintiff of the truth of the matter 
which he alleges by his bill to support the juris, 
diction of the court, is likely to prevent any abuse 
upon this head. 

II. Though the subject of a suit may be within 

(g-) See Armitage v. WadswoHh, {h) See 1 Madd. R. 195. 
I Madd. R. IB?. 



PLEAS. 285 

the jurisdiction of a court of equity, yet if the 
court of chancery is not the proper jurisdiction, 
the defendant may plead the matter which deprives 
the court of jurisdiction, and show to what court 
the jurisdiction belongs(£), and upon this ground 
may demand the judgment of the court whether 
he shall be compelled to answer the bi]l(A). Pleas 
of this nature arise principally where the suit is 
for land within a county palatine(Z), or 
where the defendant *claims the privilege [*224] 
of an university(m), or other particular 
jurisdiction(w). 

The court of chancery being a superior court 
of general jurisdiction, nothing shall be intended 
to be out of its jurisdiction which is not shown to 
be so(o). It is requisite, therefore, in a plea to 
the jurisdiction of the court, to allege that the 
court has not jurisdiction of the subject, and to 
show by vvhat means it is deprived of jurisdiction 
{p). It is likewise necessary to show what court 
has jurisdiction(^). If the plea does not properly 
set forth these particulars(r) it is bad in point of 
form(5). In point of substance it is necessary to 

(t) Earl of Derby v. Duke ofAthol, 65 ; Cotton v Manering, Cary Rep. 

1 Ves 202; yiabob cf the Carnaticv. 73; Draper v. Crowther, 2 Vent. 

E. I. Comp. 1 Ver Jr. 371. S. C. 362; Stephens v. Berry, 1 Vern. 219. 

3 Bro. C. C. 293. (n) Sec Cunningham v. Wegg, 2 

(k) Ch. Prac. 417. 420. 3 Atk. 264. Bro. C. C. 241. 

(I) Com. Dig. Chan Plea I. 1 (o) 1 Ves. 204. 2 Ves. 357. 

Chan. Prac. 420; Edgucrth v. (p) See 3 Bro. C. C. 301. 1 Ves. 

Davies, 1 Ca. in Cha. 40. Reported, Jr. 388. 

upon view of precedents, that the ju- (q) Strode v. Little, 1 Vern. 59 ; 

risdiction of the countie? palatine was Earl of Derby \. Duke of At hoi, 1. 

allowed, between parties dwelling Ves. 202. S. C. Dick. 129. 

within the same, and for lands there, (r) See Moor v. Somerset, Nelf. 

and matters local. Nels. Rep. 37. 66. Rep. 51 ; and see 9 Mod R. 95. 

See also Willoughby v. Brcarton, (s) Foster v. Vassall, 3 Atk. 587. 

Gary's Rep. 60 ; Gerrard v. Stanley, And see Nabob of Arcot v. E. I. 

1 Cha. Rep. 278. Comp. 3 Bro. C. C. 292. S. C. 1 

(wt) Temple v. Foster, Gary Rep. Ves. Jr. 371. 



286 PLEAS. 

entitle the particular jurisdiction to exclusive cog- 
nizance of the suit that it should he able to give 
complete remedy (/). A plea, therefore, of privi- 
lege of the university of Oxford, to a bill for a spe- 
cific performance of an agreement touching lands 
in Middlesex, was overruled ; for the university 
court could not give complete relief(M). And if 

a suit is instituted against different per- 
[^225] sons, some of *whom have privilege, and 

some not(x) ; or if one defendant is not 
amenable to the particular jurisdiction(i/) a plea 
will not hold. If, likewise, there is a particular 
jurisdiction, and yet the parties to litigate any 
question are both resident within the jurisdiction 
of the court of chancery ; as upon a bill concern- 
ing a mortgage of the island of Sarke, both mort- 
gagor and mortgagee residing in England, the 
court of chancery will hold jurisdiction of the 
cause : for a court of equity agit in personam(z). 
So where the court may not have jurisdiction to 
give relief it may yet entertain a bill for a disco- 
very in aid of the court which can give relief, if the 
same discovery cannot be there obtained ; as if the 
jurisdiction be in the king in council, where the 
defendant cannot be compelled to answer upon 
oath(«). 

Similar to a plea to the jurisdiction is the case 
of a plea to an information charging an undue 

(t) Newdigate v. Johnson, 2 Ca. Fanshaw v. Fanshaic, 1 Vern. 346. 

in Cha. 170; Wilkins v. Chalcroft, (y) Grigg's C3.se. biutton, 59; and 

22 Vin. Abr. 10; Green v. Ruther- see 4 Inst. 213; Hilton v. Lawson, 

forth, 1 Ves. 463. Gary R 48. 

(w) Draper v. Crowther, 2 Ventr. (r) Toller v. Carteret, 2 Vern. 

362; Stephens v. Berry, i Vern. 494. 1 Ves. 204. 3 Ves. 182. 5 

212. Madd. 307. 

(x) Lowgker V. Lowghcr, Carv {a) 1 Ves. 905. 
RtJp: 55. B. C. 22 Vin. Abr. 3''; 



PLjfiAS. 287 

election of a fellow of a college in one of the uni- 
versities, " That by the statutes the visitor of the 
" college ought to determine all controversies con- 
" cerning elections of fellows, and that such con- 
"troversies ought not to be determined else- 
" where(&)." But the extent of the visitor's 
authority must be averred, and it must also be 
averred that he is able to do complete justice(c). 
And where there is a trust created, the 
*visitor having no power to compel per- [*226J 
formance of the trust, relief must be had 
in the King's courts of general jurisdiction(d!). 

III. In respect to the person of the plaintift' it 
may be shown that he is disabled to sue, as being, 
1, out-lawed, or 2, excommunicated, or 3, a popish 
recusant convict, or 4, attainted in a premunire,or 
of treason or felony, or 5, an alien ; or it may be 
shown, 6, that the plaintiff is incapable of institu- 
ting a suit alone. A plea of this kind is in the na- 
ture of a plea in abatement of the suit. 

1. A person outlawed is disabled from suing in 
a court of justice, and if a bill is filed in his name 
the defendant may plead the outlawry, which 
whilst it remains in force will delay the proceed- 
ing(c). The record of the outlawry, or the ca- 
pias thereupon, must be pleaded suh pede sigilli^ 

(^b) Alt. Gen. v. Talbot, 3 Atk. 662. Took v. Took, 2 Vern. 198, Anon, 

S. 0. 1 Ves. 78. And see 1 Ves. 2 Freem. 143; Hovend. ed., but see 

472. 474, 475. 2 Ves. 328. Parrot v. Bowden, ib. 37 ; the main 

(c) 1 Ves. 474. fact appearing upon record, Ord. in 

(d) Green v. Rutherforth, 1 Ves. Cha. Ed. Bea. 23, 2 Ves. & Bea. 357 ; 
462; and sec 4 Bro. C. C. 167. 2 and a mere averment of identity be- 
Ves. Jr. 47. 13 Ves. 533. Ex parte ing considered sufficient, 2 Vern. 
Berkhamstead School, 2 Ves. & B. 199 ; and see 19 Ves. 83. And such 
134. a piea may be filed by a defi'ndant 

(e) A plea of outlawry may be filed who is in contempt. Waters v. 
without oath, 1 Ca. in Cha. 258. Chambers, 1 Sim. & Stu. 225. 



288 PLEAS. 

and is usually annexed to the plea(/)( i). A plea 
of outlawry, in a suit for the same duty or 
[*227] thing for which relief is sought *by the 
bill, is insufficient according to the rule of 
law, and shall be disallowed of course, as put in 
for delay(o-). Otherwise a plea outlawry is always 
a good plea so long as the outlawry remains in 
force(/i) ; but if that shall be reversed, the plaintiff, 
upon payment of costs, may sue out fresh process 
against the defendant, and compel him to answer 
the bill(/). Outlawry in a plaintiff executor or 
administrator cannot be pleaded ; for he sues in 
auter droit{k). It is equally insufficient if alleged 
in disability of a person named in a bill as the next 
friend of an infant plaintiff(Z), or in an information 
as a relator (m). 

2. The defendant may plead that the plaintiff is 
excommunicated(w), which must be certified by 
the ordinary, either by letters patent containing a 

(/) Tothill, 54 ; Prac. Reg. 327. (k) Killigrew v. KiUigrew, I 

Wy. ed. ; Onl. in Cha. Ed. Bea. 27. Vern. 184. Prac. Reg. 326. Wy. ed. 

And in a case in which the ibrmality (I) Prac. Reg. 327. Wy. ed. 

alluded to had been omitted, by mis- (m) There is a casf, Att. Gen. v. 

take of the clerk of the outlawries, Heath, Prec. in Cha. 13, where a 

the plea was allowed to be amended, plea of outlawry, in disability of the 

by annexing to it an office-copy of person of a relator, is said to have 

the exigent, or record of the outlawry, been allowed in the duchy-court of 

Waters v. Mayhcw, 1 Sim. & Stu. Lancaster. Put the relator seems to 

220. have sustained the character of plain- 

{g') See Philips v. Gibbons, 1 tiff as well as of relator. See 3 Bac. 

Ves. & Bea. 184 ; Ord. in Cha. Ed. Abr. 762. Outlawry(3) ; and see 

Bea. 175. also Waller w. Hanger, 2 Balsli. IM. 

(h) Ord. in Cha. Ed Bea. 175; 3 Palmer's case. And. 30. 

Bac. Abr. 761. Outlawry(3). (n) And this plea may be put in 

(i) Ord. in Cha. Ed. Bea. 175; without oath, if the excommunication 

and see Peyton v. Ayliffe, 2 Vern. appear upon record. Ord. in Cha. 

312. Ed. Bea. 26, and 2 Ves. & Bea. 327. 



(1) See the form of such a plea, Willis, 503. Outlawry can take 
place in the State of New-York only upon a conviction for treason. 2 
Revised Statutes, 653. 745. 



PLEAS. 289 

positive affirmation that the plaintifi" stands ex- 
communicated, and for what; or by letters testi- 
monial, reciting, " quad scrufatis registe- 
riis invenitur, &.c." Jliitlier *of these certi- [*228] 
ficates must be sub sigillo, and so plead- 
ed(o). Excommunication is a good plea to an 
executor or administrator, though they sue in 
auter droit{p), but not to the next friend of an 
infant(5'). This, like the plea of outlawry, ceases 
to be a bar when the disability is removed ; and 
therefore the plaintiff, purchasing letters of abso- 
lution, may, as at law, sue out fresh process, and 
compel the defendant to answer the bill(r). 

3. By statute 3 Ja. I. c. 5. s. 1 1, every popish 
recusant convict is in many cases disabled to sue, 
in the same manner as a person excommunicated. 
The instances of a plea of conviction of recusancy 
have probably been rare, as no traces of any occur 
in the books of reports, nor does the fornl of the 
plea appear in the books of practice. If advan- 
tage should be attempted to be taken of this 
statute, the court would probably require the 
same averments to support the plea as are neces- 
sary to a plea of the same nature at law(5). This 
plea also ceases to be a bar if the plaintiff by con- 
forming removes the disability(^). 

4. A plea, that the plaintiff is disabled from 

(o) Ord. in Cha. Ed. Bca. 27. stat. 53 Geo. III., c. 127, excoiumu- 

Prac. Reg. 327. Wy. ed. Tothill, nication is discontinued, except in cer- 

54. tain cases therein specified. 

(p) Co. Litt. 134, a. 2 Bac. Ahr. (s) 3 Bac Ah. 780. Papists,(l). 

319. Excoin. (D). See Lord Petre v. Univ. of Cam- 

(q) Prac. Reg. 278. bridge, Lutwyche, 1100. 

(r) Aviers v. Legg, Choice Ca. in (t) See Stat. 31 Greo. III. c. 32, 

Cha. 164. Prac. Reg. 327. Wy. ed. § 3 ; and valuable note to Co. Litt. 

It should here be mentioned, that by p. 391, a. not«(2). Hargr. & Bull, ed, 

37 



290 PLEAS. 

[*229] suing *being attainted, is equally rare(M). 

It would probably be likewise judged 

with the same strictness as if it was a plea at 

j 5. There is little more to be found in the books 
upon the subject of the plea that the plaintiff is an 
alien(i/)(l). An alien who is not an alien enemy, is 
under no disability of suing for any personal de- 

L mand(2;) ; and an alien enemy may sue under some 
circumstances(«). A plea has been put into a bill 
filed by an alien infidel not of the Christian faith, 
and was attempted to be supported upon the ground 
that the plaintiff was upon a cross-bill incapable 
of being examined upon oath. The plea was over- 
ruled without argument(6). 

6. If a bill is filed in the name of any per- 
[*230] son incapable *alone of instituting a suit, 

(it) See V. Davies, 19 Ves. Atk. 51. As to the incapacities of 

81 ; and see Ex parte Bullock, 14 aliens to take and to hold certain pro- 

Ves. 452. And case on Irish statutes, perty, see Co. Litt. 2 b., and notes in 

Kennedy v. Daly, 1 Sch. & Lefr. Hargr. and But), ed. In such cases, 

355. it is presumed that a plea of mere 

(a:) 2 Atk. 399. This kind of plea alienage, if properly framed, would 

is not to be supported by oath, but be a sufficient defence. See Co. Litt. 

can be proved by the record alone, 129. (6) ; and Burk v. Brown, 2 

V. Davies, 19 Ves. 81. 2 Ves. Atk. 397. 

& Bea. 327. (a) 3 Burr. 1741. 1 Bac. Ab. 84. 

(y) Burk v. Brown, 2 Atk. 397. Alien (D). Doug. 619. Cornu and 

2 Vin. Abr. 274. Alien(I). 1 Bac. Blackburne, and the case of Anthon 

Abr. 83. Alien (D). Prac. Reg. and Fisher, in Doug, note 1, p. 626. 

327. Wy. ed. Rast. Entr. 252; But the latter case was afterwards 

Bolt V. Att. Gen. 1 Bro. P. C. 421. reversed in the Exchequer Chamber, 

Toml. ed. ; Albretcht v. Sussman, 2 16th Nov. 1784. And see Evans v. 

Ves. and Bea. 323 ; and see Ex Richardson, 3 Mcriv. 469. 

parte Lee, 13 Ves. 64, and Ex parte (b) Ramkissenseat v. Barker, 1 

Boussmaker, 13 Ves. 71. Atk. 51. 

(2) Ramkissenseat v. Barker, 1 



(1) See the form of a plea that the complainant is an alien enemv. 
Willis, 5\3; 2 Equity Draft. 94, (2d edit.); and the form of the one 
which was used in Albretcht v. Stusman, {supra.) Beames on Pleas, 
329. 



PLEAS. 291 

as an infant(l), a married woman(2), or an 
idiot or lunatic(3), so found by inquisition, the 
defendant may plead the infancy, the coverture(&), 
or the inquisition of idiotcy or lunacy(c), in abate- 
ment of the suit. 

IV. A plea, that the plaintiff is not the person 
he pretends to be, or does not sustain the character 
he assuines, and therefore is not entitled to sue as 
such(^/), though a negative plea, is good in abate- 
ment of the suit; as were a plaintift' entitled him- 
self as administrator, and the defendant pleaded 
that he was not administrator(c). And where a 
plantiff' entitled himself as administrator of an 
intestate, and the defendant pleaded that the sup- 
posed intestate was living(/), the plea was allow- 
ed(5). It has been made a question how far a 

(b) Prac. Reg. 326. Wy. ed. {e)Winn v. Fletcher, 1 Vern. 473 ; 

(c) See case of the plaintiff being but see Fell v. Lutioidge, 2 Atk. 
in a state of mere mental incapacity, 120. 3 Barnard, 320(4). 
Wartnaby v. Wartnaby, 1 Jac. R. (/) Orel v. Huddleston, Dick. 
377. 510. S. C. cited, 1 Cox R. 198. 

(cZj Prac. Reg. 326. Wy. ed. 



(1) See the form of a plea of infancy to a bill exhibited without a 
next friend. Willis, 514. 

(2) See the form of a plea of coverture of (he complainant. Willis, 
515. 

(3) See the form of a plea of lunacy. Willis, 516. 

(4) If a complainant sues as executrix and has not obtained probate, 
the defendant may raise the objection by plea. Bourke v. Kelly, 1 Tio- 
ga ,, 172 ; Simons v. Milman, 2 Sitn. 241. 

The (ruth of a pica that the complainant is not the executrix of her 
testator, must be tried under a reference and not a replication. Bourke 
V. Kelly, supra. 

As to swearing to a plea in disability of the person, see Woods v. 
Crengh, 1 Hogan, 22\. 

(5) See the form of such a plea. Willis, 517. For the form of a 
plea by several defendants that the complainants are not next of kin 



292 



PLEAS. 



negative plea can be good(o-). To a bill by a 
person claiming as heir to a person dead, the de- 
fendant pleaded that another person was heir, and 
that the plaintiff was not heir to the deceased, and 
the plea was overruled(//), but this decision was 

afterwards doubted by the learned judge 
[*231] himself(/), when pressed by the ^necessary 

consequence, ihat any person falsely alle- 
ging a title in himself might compel any other per- 
son to make any discovery which that title, if true, 
would enable him to require, however injurious to 
the person thus improperly brought into court ; so 
that any person might, by alleging a title, however 
false, sustain a bill in equity against any person 
for any thing so far as to compel an answer ; and 
thus the title to every estate, the transactions of 
every commercial house, and even the private 
transactions of every family, might be exposed ; 
and this might be done in the name of a pauper, 
at the instigation of others, and for the worst pur- 
poses(fe). To avoid this inconvenience, a defend- 

(§•) But that question has been set more, 2 Jac. & W. 541. 

at rest. 11 Ves. 302, 305. See in- (i) 3 Bro. C. C. 489. 1 Madd. R. 

stances of negative pleas referred to 194. And it seems to have been es- 

in the next p«ge(l). tablished, that in such a case, a plea 

(Ji) Newman v. Wallis, 2 Bro. C. that the plaintiff is not heir, without 

C 142; and see Gunn v. Prior, showing who is heir, would be good, 

Dick. 657. S. C. 1 Cox R. 197. for that the defendant might not be 

Forrest. Ex. R. 88. n. Kinnerslcy v. able to prove. 16 Ves. 264, 2G5(2). 

Simpson, Forrest. 85. See also Earl (^)(3) As further examples of ne-r 

of Strathmore \ . Counless of Strath- gative pleas, see Dreio v. Drew, 2 

and averring that only one of the defendants sustains that character, 
2 Equity Draft. 104. 

(1) Also Beames on Pleas, 120 to 129 ; Warrington v. Mnlhersill,! 
Price, 666. 

(2) And see Beames on Pleas, 123, 124, et seq. ; and notes there. 

(3) To a bill filed by persons claiming title to an estate as the co- 
heirs of A. ex parte materna, the defendants pleaded that another per^ 



PLEAS, 293 

ant has in some cases been permitted to negative 
the plaintiff's title by answer, and thus to protect 
himself against the required discovery ; but in other 
cases this has not been allowed, and the subject 
seems still to require further consideration(/). 

V. Interest in the subject of the suit, or 
a right to *the thing demanded, and pro- [*232] 
per title to institute a suit concerning it, 
have been mentioned as essentially necessary to 
sustain a bill ; and it has been observed, that if 
they are not fully shown by the bill itself the de- 
fendant may demur. But a title apparently good 
may be stated in a bill, and yet the plaintiff may 
not really have the title he states, either because 
he misrepresents himself, which has been consider- 
ed under the last head, or because he suppresses 
some circumstances respecting his title, which if 
disclosed would show eithor tliat nothing was ever 
vested in him, or that the title which he had has 
been transferred to another ; and this the defend- 
ant may show by plea in bar of the suit. As if a 
plaintiff claims as a purchaser of a real estate, 
and the defendant pleads that he was a papist, and 

Ves. and Bea. 159; Sanders v. King, of the Rolls, sitting for the Chancel- 

6 Madd, 61, and Yorke v. /Vy, ib. lor, 29 Oct. 1739, said, it was one 

65, that i>laintitr is not a partner ; thing to deny a title in the plaintiff, 

and Thring v. Edgar, 2 Sim. & and another to show a title in one's 

Stu. 274(1), and particularly at p. self; and that the former had never 

280, that he is not a creditor. been allowed as a good plea. — Mr. 

(i) See 11 Ves. 283. 296. and 303, Capper's note. See the authorhies 

and the several cases there cited, cited in the last note, and in the notes 

with the discordant opinions of seve- to the next page and below, chap. 2. 

ral judges. In the case of Getkin v. sect. 2. part 3(2). 
Gale, cited in Ambl. 354, the Master 

son was the heir of A. ex parte palerna, but did not set forth the 
pedigree of that person. Semble, that such a plea is good. Emerson 
V. Harland, 3 Simons R. 490. 

(1) Warrington v. Mothersill, 7 Price, 066. 

(2) Page 307. 



294 PLEAS. 

incapable of taking by purcbase(??i) ; or a plaintiff 
claims property under a title accrued previous to 
conviction of himself, or of a person under whom 
he claims, of some ollence which occasioned a for- 
feiture(/2), or previous to a bankruptcy(o), 
[*233] ( 1) or any other defect in the title(p) of *the 
plaintitfto the matter claimed by the bill. A 
plea of conviction of any offence which occasions 
forfeiture, as manslaughter, must be pleaded with 
equal strictness as a plea of the same nature at com- 
mon la\v(^). But if a plea goes to show that no title 
was ever vested in the plaintiff, though for that 
purpose it states an offence committed, conviction 
of the offence is not essential to the plea, and the 
same strictness is not required as in a case of for- 
feiture. Thus, in the Exchequer, to a bill seeking 
a discovery of the owners of a ship captured and 
payment of ransom, the defendants pleaded that 
the captor was a natural-born subject, and the 
capture an act of piracy. Though the barons at 
first thought that the plea could not be supported 
unless the plaintiff had been convicted of piracy, 

(m) See however, 18 Geo. II [. c. instance of a plea that the plaintiff 

60, s. 2, and the 43 Geo. 111. c. 30, by had taken the benefit of an Act for 

which this incapacity is conditionally the relief of insolvent debtors, De 

removed. Minckwitz v. Udney, 16 Ves. 466. 

(n) 2 Atk. 399. v. Davies, (p) Quilter v. Musscndine, Gilb. 

19 Ves 81. Ca. in Eq. 228 ; Uitchens v. Lander, 

(o) Carletcn v. Leighton, 3 Meriv. Coop. R. 34 ; Gait v. Osbaldeston, 1 

667. See Loxondes v. Taylor, 1 Russ. R. 158, in which the decision 

Madd. R. 423 ; S. C. 2 Rose R. 3G5. in S. C. reported 5 Madd. 428, was 

432. It seems a plea of the plaintiff's overruled; and see Ovklestone v. 

bankruptcy must be upon oath, Jo- Benson, 2 Sim. & Stu. 265. 

seph V. Tuckey, 2 Cox R. 44. See {q) 2 Atk. 399. 

(1) Sec the form of a plea of bankruptcy of the complainaot, Willis, 
519. A pica that the complainant lias taken the benefit of an act for 
the relief of insolvent deblorb is to be found in De Minckwitz v. Ud- 
ney, 16 Ves. 467. 



PLEAS. 



295 



and tlie record of the conviction had been annexed 
to the plea, they were finally of opinion that as 
the plea showed that the capture was not legal, 
and that therefore no title had ever been in the 
plaintift', the plea was good, and they allowed it 
accordingly(r). Pleas of want of title generally 
extend to discovery as well as to relief(5). 

It cannot often be necessary to make defence on 
this ground by way of plea; for if facts are not 
stated in the bill from which the court will infer a 
title in the plaintiff, though the bill does contain 
an assertion that the plaintiff has a title, the de- 
fendant may demur; the averment of title in the 
bill being not of a fact, but of the conse- 
quence of facts. Thus, where *a plaintiff [*^234J 
stated an encumbrance on a real estate, of 
which he was devisee, and averred that it was the 
debt of the testator, and prayed that it might be 
paid out of the testator's personal estate in ease of 
the real estate devised, the defendant having plead- 
ed that the testator had done no act by which he 
made it his own debt, the plea was overruled, be- 
cause, whether it was his debt or not was matter 
of inference from the facts stated in the bill, and 
therefore the proper defence was by demurrer(/). 
Accordingly the defendant afterwards demurred, 
and the demurrer was allowed(z*). 

VI. In treating of demurrers notice has been 
taken that though a plaintiff has an interest in the 
subject of a suit, and a right to institute a suit con- 
cerning it, yet he may have no right to call upon 

(r) Fall against , 1st May, (t) Twedell v. Twedell, 25th May, 

17S2. 1784, in Cha. 

(a) Gilb. 229. («) Same cause, 18th July, 1786. 



296 



PLEAS. 



the defendant to answer his demands ; and it has 
been observed, that this happens where there is a 
want of privity of title between tlie plaintiff and de- 
fendant(u). It would probably be difficult to frame 
a bill which was really liable to objection on this 
head so artfully as to avoid a demurrer. But if 
such a bill could be framed it should seem that 
defence might be made by plea. 

VII. A plea that the defendant is not the person 
he is alleged to be, or does not sustain the charac- 
ter which he is alleged to bear, is mentioned as a 

plea which may be supported(:r). It seems 
[*235] to have been *considered as more conve- 
nient for a defendant under these circum- 
stances to put in an answer alleging the mistake 
in the bill, and praying the judgment of the court 
whether he should be compelled further to answer 
the bill(^), but this in fact amounts to a plea, 
though it may not bear the title ; and a plea has 
been considered as the proper defence(2;). 

VIII. If a defendant has not that interest in the 
subject of a suit which can make him liable to the 
demands of the plaintiff, and the bill alleging that 
he has or claims an interest avoids a demurrer, he 
may plead the matter necessary to show that he 
has no interest(«), if the case is not such that by a 

(m) See above, p. 158(1). Hotham, 1 Turn. R. 209. See be- 

{x) Prac. Reg. 326. Wy. ed. low, c. 2, s. 2, part 3. 

And see Griffith v. Bateman, Finch (z) 1 Ves. Jr. 292, and see ib. p. 

R. 334. 294, note(2> 

(y) Gary Rep. 61. Prac. Reg. (a) Plummer v. Alay, 1 Ves. 426. 

327. Wy! ed. Att. Gen. v. Lord 

(1) See the form of a plea that a defendant never was administra- 
tor, Willis, 528 ; 2 Equity Draft. 95. {2d edit.) 

(2) And see Carroll v. Waring, 3 Gill S( Johnson, 491. 



PLEAS. 297 

general disclaimer he can satisfy the suit(6). Thus, 
where a witness to a will was made a defendant to 
a bill brought by the heir at law to discover the 
circumstances attending the execution, and the bill 
contained a charge of pretence of interest by the 
defendant, though a demurrer for want of interest 
was overruled, because it admitted the truth of the 
charge to the contrary in the bill, yet the court 
declared an opinion that a defence might have 
been made by plea(c). ^^ 

*IX. Though the subject of a suit may [*236] 
be within the jurisdiction of a court of 
equity, and the court of chancery may have the 
proper jurisdiction; though the plaintiff may be 
under no personal disability, and may be the person 
he pretends to be, and have a claim of interest in 
the subject, and a right to call on the defendant 
concerning it, and the defendant may be the per- 
son he is stated to be, and may claim an interest 
in the subject which may make him liable to the 
plaintiff's demands, with respect to which circum- 
stances pleas have been already considered, still 
the plaintiff, by reason of some additional circum- 
stance, may not be entitled in the whole or in part 
to the relief or assistance which he prays by his 
bill. The objections which may be made to the 
whole or any part of a suit, though liable to none 
of the objections before considered, are principally 
the subject of those kinds of pleas which are com- 
monly termed pleas in bar ; and which are usually 

(b) See the case of Tur?icr V. Ro- Bro. C. C. 238; S. C. 1 Ves. Jr 
binson, 1 Sim. & Stu. 3. 392; 7 Vey. 289, 290; 1 Ves. & 

(c) Plummer v. Mmj, 1 Ves. 426. Bea. 550 ; Turner v. Robinson, 1 
This must liave been a negative pica. Sim. & Stu. 3. 

And see Cartwright v. Hatcl'j, 3 

38 



298 PLEAS. 

ranked under the heads of pleas of matter record- 
ed, or as of record, in the court itself, or some 
other court of equity; pleas of matters of record, 
or matters in the nature of" matters of record, in 
some court not a court of equity ; and pleas of 
matters in pais. 

Pleas in bar of matters recorded, or as of re- 
cord, in the court itself, or some other court of 
equity, may be, 1. A decree or order of the court 
by which the rights of the parties have been de- 
termined(</)(l), or anot her bill for the same cause 

dismissed(«) ; 2. Another suit depending 
[*237] in the court, or in some ^other court of 

equity, between the same parties for the 
same cause( /')(2). Pleas of this nature generally 
go both to the discovery sought and the relief 
prayed by the bill. 

1. A decree, determining the rights of the par- 
ties, and signed and enrolled, may be pleaded to a 
new bill for the same matter(^), and this even if 
the party bringing the^new bill was an infant at 
the time of the former decree(A) : for a decree en- 
rolled can only be altered upon a bill of review(i). 
But the decree must be in its nature final, or af- 
terwards made so by order, or it will not be a 

{d) 3 Atk. 626. 124 ; Mallock v. Gallon, Dick. 65. 

(^e) Pritman\. Prit-inan,\ Yvxn. (h) 1 Atk. 631. Gregory v. 

310. 1 Atk. 571. MolestPorth, 3 Atk. 626. 3 Ves. 

(/) roster V. Vassall, 3 Atk. 317. 

587(3). (»■) 3 Atk, 627. See aljove, p. 83, 

(g) Rutland v. Brett, Finch. R. et seq. 



(1) See the form of a plea of a decree, Willis^ 529. 

(2) See the form of sucli a plea, Willis, 534. 

(3) Saunders v. Frost, 5 Pickering's R. 275. 



PXEAS. '^99 

bar(A:)(l). Tlierctbre a decree lor an account of 
principal and interest due on a mortgage, and tor 
a foreclosure in case of non-payment, cannot be 
pleaded to a bill to redeem unless there is a final 
order of foreclosure(Z) ; nor can a decree which 
has been made upon default of the defendant in 
not appearing at the hearing be pleaded without 
an order making the decree absolute ; the terms 
of such a decree being always that it shall be 
binding on the defendant, unless on being served 
with a writ of subpoena for the purpose he shall 
show^ cause to the contrary(m). Upon a plea of 
this nature so much of the former bill and 
answer must be set *forth as is necessary [*238] 
to show that the same point was then in is- 
sue(w). A decree or order dismissing a former 
bill for the same matter may be pleaded in bar to 
a new bilI(o)(3) if the dismission was upon hear- 



(k) See next page, notes (o) &, (p). But see 1 Vern. 310(2). 

(Z) Senhouse V. JEarl, 2 YeaAbO. (o) Pritman \ . Pritman, 1 Vern. 

(to) Ord. in Cha. 198. Ed. Bea. 310; Madge v. Brett, Finch. R. 46 ; 

And see HaUey v. Smith, Mos. 186 ; Connell v. Warren, ib. 239 ; Earl 

Venemorc v. Venemore, Dick. 93. of Peterborough, v. Germaine, 6 

<n) Child V. Gibson, 2 Atk. 603. Bro. P. C. 1 Toml. ed. 



(1) Although a decree cannot be pleaded in bar if it is not enrolled, 
yet, in such a case it may be insisted on by way of answer. Davoue 
V. Fanning., 4 J. C, R. 199. It will not be allowed ou the hearing, un- 
less set up in the answer, or (if enrolled) pleaded. Lyon v. Tallmajge., 
on appeal, 301. 

(2) Lyon v. Tallinadge, on appeal, 14 J. R. 501. 

(3) It must be an absolute decision upon the same point or matter, 
and the new bill must be brought by the same complainant who filed 
the original bill or his representatives against the same defendant and 
his representatives. If the defendant in the original suit, having since 
acquired a legal estate or legal advantage, files his bill against the 
former complainant, the cause is open on its merits. J\''eajic v. J^eafe, 
1 J.C.R.\. 



300 PLEAS. 

ing, and was not in terms directed to be without 
prejudice(m). But an order of dismission is a bar 
only where the court determined that the plaintiff 
had no title to the relief sought by his bill ; and 
therefore an order dismissing a bill for want of 
prosecution is not a bar to another bill(w). And 
a decree cannot be pleaded in bar of a new bill 
unless it is conclusive(«) of the rights of the plain- 
tiffs in that bill, or of those under whom they 
c]mm(p). Therefore a decree against a mortga- 
gor, and order of foreclosure enrolled, were not 
deemed a bar to a bill by intervening encumbran- 
cers to redeem, although the mortgagee had no 
notice of those encumbrances : and the mortgagee 
having been long in possession, the account taken 
in the former cause was not deemed conclusive 
against the plaintiffs in the new bill, though under 
the circumstances the court, on overruhng the 
plea and ordering the defendant to answer, limited 
the order by directing that the defendant 
[*239] *should answer to charges of errors or 
omissions, but that the plaintiffs should 
not unravel the account at large before the hear- 
ing(gr). 

A decree must be signed and enrolled or it can- 
not be pleaded in bar of a suit(r), though it may 

(m) Seymour -v. Nosicorthy, ICn- Cha. 119; Godfrey \. ChadtceU,2 

in Cha. 155. Toth. 50(1). Vern. m\; Atkinson \. Turner, Z 

(n) Brandlyn\. Ord, 1 Atk. 571. Barnard. 74. 

14 Ves. 232. (q) Morrett v. Western, 15 July, 

(0) Sec Coysgarne v. Jones, 1710, in Cha. reported 2 Vern. 663. 
Ambl. 613 ; CoUins v. Gough, 4 (r) Anon. 3 Alk. 809 ; Kinsey r. 
Gwill. T. C. 1294. Kinsey, 2 Ves. 577. 

(p) See Doyly v. Smith, 2 Ca. in 

(1) S. P. Ferine v. Dunn, 4 J. C. R. HO ; Holmen v. Remsen, 7 
lb. 286. 



PLEAS. 301 

be insisted upon by way of answer(5). But though 
it cannot be pleaded directly in bar of the suit for 
want of enrolment, it may perhaps be pleaded, to 
show that the bill was exhibited contrary to the 
usual course of the court, and ought not therefore 
to be proceeded upon(<). For if the decree appear^^ 
ed upon the face of the bill the defendant might 
demur (ie), a decree not signed and enrolled being 
to be altered only upon a rehearing(:r), as a de- 
cree signed and enrolled can be altered only upon 
a bill of review(»/). 

If a bill is brought to impeach a decree on the 
ground of fraud used in obtaining it, which, as 
has been observed («), may be done without the 
previous leave of the court, the decree may be 
pleaded in bar of the suit, with averments nega- 
tiving the charges of fraud, supported by an an- 
swer fully denying them(«). Whether 
averments negativing the charges *of [*240] 
fraud are necessary to a plea of this de- 
scription appears to have been a question much 

(s) 2 Ves. 577. And see Charles C. 558. Toml. ed. S. C. 2 Eq. Ca. 

V. Rowley, 2 Bro. P. C. 485. Toml. Ab. 177, and 7 Vin. Ab. 398. pi. 15. 

ed. 3 P. Wms. 95. Gilb. For. Rom. 58. 

(<) See 2 Ves. 577, note. Chan. Treatise on Frauds, c. 18, p. 220; 

Pleas, 89. Butcher v. Cole, at the Rolls, 26 

(ti) Wortley v. Birkhead, 3 Atk. June, 1786, cited 1 Anstr. 99. See 

809. S. C. 2 Ves. 571 ; Lady Gran- the cases of Sidney v. Perry, Par- 

ville V. Ramsden, Bunbury, 5G. kinson v. Lccras, Meadows v. Duch- 

(.t) 2 Ves. 598. See above, p. 90. ess of Kingston, and Devie v. Ch'es- 

(y) Read v. Havibey, 1 Ca. in ter, mentioned in pages 247. 254. 

Cha. 44. S. C. 2 Freem. 179. Sec 257. 263. 276. And see 6 Ves. 596. 

above, p. 237, note(/i). 2 Sch. & Lefr. 727. 5 Madd. 330. 



f^^ Page 92. ' _ _ 6 Madd. 64(1). 

(a) Wic' 



ichalse v. Short, 3 Bro. P. 



(1) Allen V. Randolph, 4 J. C. E. G93. Where a bill charged 
misrepresentation, coercion and fraud in procuring the release of a 
debt, and the defendant put in a plea and answer ; and in his plea in- 
sisted on the release in bar, witliout noticing the allegation of fraud, 



302 PLEAS. 

agitated in recent cases(6); upon which it may 
be observed, that without such averments, if the 
decree were admitted by the bill, nothing would 
be put in issue by the plea. The question in the 
cause must be, not whether such a decree had 
been made, but whether such a decree having been 
made it ought to operate to bar the plaintiff's de- 
mand. To avoid its operation the bill must allege 
the fraud in obtaining it ; and to sustain it as a 
bar the fact of fraud must be denied and put in 
issue by the plea. For upon the question, whe- 
ther the decree ought to operate as a bar, the fact 
of fraud is the only point upon which issue can be 
joined between the parties ; and unless the plea 
covers tiie fact of fraud it does not meet the case 
made by the bill ; and on argument of the plea, the 
charge of fraud, not being denied by the plea, 
must be taken to be true. If the bill states 
[*241] the *decree only as a pretence of the de- 
fendant, which it avoids by stating, that 

(b) Pojic V. Bish, 1 Anstr. Exch. plea where it applies to matter which 

R. 59 ; Edmundson v. Hartley, ib. the defendant by his plea declines to 

97. And see Bayley v. Adarris, G answer; demanding the judgment of 

Ves. Jr. 586. In the cases in the the court, whether by reason of the 

Court of Exchequer it seems to have matter stated in the plea he ought to 

been supposed that the answer in be compelled to answer so much of 

support of the plea overruled the plea, the bill. See Arnold's case, Gilb. 

But an answer can only overrule a For. Rom. 59(1). 

though io the answer it was fully met and denied, — Held, that the plea 
was bad. Alloi v. Randolph, supra. 

(1) Bolton V. Gardner, 3 Paige's C. R. 273. The only exception 
to this rule, is the case where the answer is necessary to support the 
plea, as where the bill cbargcs circumstances calculated to avoid the 
anticipated bar of the defendant. There, it is proper, not only that 
the plea should contain all necessary averments to remove those cir- 
cumstances out of the way, but the defendant must support the plea by 
an answer also denying' the circumstances. Ferguson v. O'Hara, 1 
Peters' C. C R. 493. 



PLEAS. 303 

if any such decree had been made it had been ob- 
tained by fraud, the decree must be pleaded, be- 
cause the fact of the decree is not admitted by 
the bill ; and the charge of fraud must also be de- 
nied by the plea for the reasons before stated. If 
the bill states the decree absolutely, but charges 
fraud to impeach it, yet the decree must be plead- 
ed, because the decree if not avoidable is alone the 
bar to the suit ; and the fraud by which the bar is 
sought to be avoided must be met by negative 
averments in the plea, because without such aver- 
ments the plea would admit the decree to have 
been obtained by fraud, and would therefore admit 
that it ibrmed no bar. When issue is joined upon 
such a plea, if the decree is admitted by the bill, 
the only subject upon which evidence can be given 
is the fact of fraud. If that should be proved, it 
would open the plea on the hearing of the cause; 
and the defendant would then be put to answer 
generally, and to make defence to the bill as if no 
such decree had been made. The object of the 
plea is to prevent the necessity of entering into 
that defence by trying first the validity of the de- 
cree. If the evidence of fraud should fail, the de- 
cree, operating as a bar, would determine the suit 
as far as the operation of the decree would extend. 
It has also been objected, that a plea of the de- 
cree is a plea of the matter impeached by the bill; 
but the frame of a bill in equity necessa- 
rily produces, in ^various instances, this [*242] 
mode of pleading(c). If the bill stated 

(c) See 3 P. Wins. 317, where jccted to this mode of pleading, ol>- 
Lord Chancellor Talbot is stated to serving that it was every day's pr«c- 
have interrupted the counsel, who ob- tice, 



304 



PLEAS. 



the title under which the plaintiff claimed, without 
stating the decree by which it had been affected, 
the defendant might have pleaded the decree alone 
in bar. If the bill stated the plaintiff's title, and 
also stated the decree, and alleged no fact to im- 
peach it, and yet sought relief founded on the title 
concluded by it, the defendant might demur ; be- 
cause upon the face of the bill the title of the 
plaintiff would appear to be so concluded. But as 
in the form of pleading in equity the bill may state 
the title of the plaintiff, and at the same time state 
the decree by which, if not impeached, that title 
would be concluded, and then avoid the opera- 
tion of the decree by alleging that it had been ob- 
tained by fraud ; if the defendant could not take 
the judgment of the court upon the conclusiveness 
of the decree by plea upon which the matter by 
which that decree was impeached would alone be 
in issue, he must enter into the same defence (by 
evidence as well as by answer) as if no decree had 
been made ; and would be involved in all the ex- 
pense and vexation of a second litigation on the 
subject of a former suit, which the decree, if unim- 
peached, had concluded. It is therefore permitted 
to him to avoid entering into the general question 
of the plaintiff's title as not affected by the decree, 
by meeting the case made by the plaintiff, 
[*243] which can alone give him *a right to call 
for that defence, namely, the fact of fraud 
in obtaining the decree. This has been permitted 
to be done in the only way in which it can be 
done, by pleading the decree with averments deny- 
ing the fraud alleged ; and those averments being 



PLEAS. 305 

the only matter in issue, they are necessarily of 
the very substance of the plea. The decree if ob- 
tained by fraud would be no bar ; and nothing can 
be in issue on a plea but that which is contained 
in the plea ; and every charge in the bill not nega- 
tived by the plea is taken to be true on argument 
of the plea. If therefore the decree merely were 
pleaded, on argument of the plea, the charge of 
fraud must be taken to be true, and the plea ought 
therefore to be overruled ; but if on argument the 
plea were allowed, or if the plaintiff, without argu- 
ing, replied to the plea, no evidence could be given 
on the charges of fraud to avoid the plea, and the 
defendant proving his plea(<i), that is, proving the 
decree and nothing more, would be entitled to 
have the bill dismissed at the hearing(c). 

*As the averments negativing the char- [*244] 
ges of fraud are used merely to put the fact 
of fraud as alleged by the bill, in issue on the plea, 
they may be expressed in the most general terms, 
provided they are sufficient to put the charges of 
fraud contained in the bill fully in issue. And as 
the plaintiff is entitled to have the answer of the 

(d) Sir Joseph Jekyll, M. R. 3 pleaded a decree binding the right, 
P. Wms. 95. the plaintiff might have replied, that 

(e) Perhaps all the difficulties the decree had been obtained by 
which have arisen upon this subject fraud, by which the plaintiff would 
have proceeded from want of atten- have admitted that the decree was a 
tion to the form of pleadings in courts bar; if not capable of impeachment on 
of equity, especially since the disuse the ground of fraud; the defendant 
of special replications, rejoinders, by rejoinder would have avoided the 
sur-rejoinders, &:c. When those charge of fraud, and sustained the 
pleadings were allowed, the plaintiff decree ; and then the issue would 
might nave stated his case, without have been simply on the fact of 
suggesting that it had been affected fraud. 

by any decree; if the defendant 

(1) See this principle recognised by Chancellor Walworth, in Bo- 
ganlus V. Rector, SfC, nf Trinity Church, MS. 6th August, 1833. 

39 



306 PLEAS'. 

defendant upon oath to any matter in dispute be- 
tween them, in aid of proof of tiie case made by 
the bill, the defendant must answer to the facts of 
fraud alleged in the bill so fully as to leave no 
doubt in the mind of the court that upon that an- 
swer, if not controverted by evidence on the part 
of the plaintiff, the fact of fraud could not be esta- 
blished(/). If the answer should not be full in 
all material points, the court may presume that 
the fact of fraud may be capable of proof in the 
point not fully answered, and may therefore not 
deem the answer sufficient to support the plea as 
conclusive, and therefore may overrule the plea 
absolutely, or only as an immediate bar, saving 
the benefit of it to the hearing of the cause. But 
though the answer may be deemed sufficient to 
support the plea upon argument, the plaintiff may 
except to the answer if he conceives it not to be 
so full to all the charges as to be iiee from 
[*245] exception ; or by ^amending his bill may 
require an answer to any matter which 
may not have been so extensively stated or inter- 
rogated to as the case would warrant ; or to which 
he may apprehend that the answer, though full in 
terms, may have been in effect evasive. 

As the bill must be founded on the supposition 
that the plaintiff's title is not concluded by the 
decree, and the plea on the contrary supposition, 
the effect of the plea is, to conclude the whole case 

(y) It seems to have been ima- part of tlie defence ; but that evidence 
gined that there was something incon- which the plaintiff has a right to re- 
gruous in a plea, and answer in sup- quire, and to use to invalidate the de- 
port of the plea. 6 Ves. 597. But fence made by the plea, upon argu- 
this objection seems to have arisen ment of the plea, before other evi- 
froin the supposition that the answer dence caa be givPD. 

ffirn^»A •'•rf -'" *Vo. rlofpnce. It is no 



PI.EAS. liOt 

wvdde by the bill, so far as it may be concluded by 
the decree, excej)t tlie question of fraud ; and con- 
sequently all the questions which might have been 
raised, if the decree had not been made, are put by 
the plea, if allowed, wholly out of the cause, unless 
the plea should be shown to be false in fact by evi- 
dence given on the issue taken upon it, and the 
matter of the plea thus opened upon the hearing. 
It is therefore a mistake to suppose that the plea» 
if sustained, would not shorten the cause, or lessen 
'expense(^). 

As the ground of this defence by plea of a de- 
cree is that the matter has been already decided, a 
decree of any court of equity, in its nature final, or 
made so by subsequent order, may be pleaded in 
bar of a new suit(//). 

*2. Another suit depending in the same [*246] 
or another court of equity for the same 
cause(/) is a good plea(/r)(2) ; except, perhaps, in 

(g) The argument which is con- Mos. 2ij8 ; Pritman v. Prilman, 1 

Sained in the few preceding pages of Vern. 310 ; Fitzgerald v. Fitzger- 

the text, and the note thereto, has aid, 5 Bro. P. C. 567. Toml. ed., but, 

been adopted and established by de- as to the authority of this particular 

cided cases ; but these not relating to case, except in principle, see stat, 23 

<lecrees, thoy will be adduced hcreaf- Geo. III. c. 28, and stat. 39 and 40 

ter in illustration of the doctrines re- Geo. III. c. 67, art. 8. See aldo 

lating to the several pleas of legal Pitcher v. Righy, 9 Pri. Ex. R. 79. 
bars sought to be set aside upon equi- (t) Ord. in Cha. ed. Bea. 26. 176. 

table grounds, with reference to Crofts v. Wcrtlcy, 1 Ca. in Cha. 

which they have been respectively 241; Foster v. Vassall, 3 Atk. 5Q1 ; 

determined. Sec, however here, 2 Bell v. Bead, ib. 590 ; Murray v. 

Ves. & B. 304. 6 Madd. C4, and Shadwell, 17 Ves. 353(1). 
2 Sim. & Stu. 279. (A) It seems, that the pendency of 

(A) Geale v. Wyntour, Bunb. 211 ; another suit for the same cause, in a 

Wingv. H'ing-, 10 Mod. 102. Ano7t. court of concurrent equity jurisdic- 

(1 ) The mere pendency of a suit in a foreign court, or in a court of 
the United Slates, cannot be pleaded in abatement or in bar to a suit 
for the same cruise in a state court. Mitchell v. Bunce, 2 Paige's C. 
R. 006. 

(2) See the form of such a plea, Willis, 534 ; Beames on Pleas, 
330 ; 2 Equity Draft. 1 17. 



303 PLEAS. 

the case of a suit depending in an inferior court of 
equity, the effect of which the defendant has avoid- 
ed by going out of the jurisdiction of that court(Z), 
The plea must aver that the second suit is for the 
same matter as the first ; and therefore a plea which 
did not expressly aver this, though it stated matter 
tending to show it, was considered as bad in point 

of form, and overruled upon argument(m). 
[*247] The plea must also *aver that there have 

been proceedings in the suit, as appearance 
or process requiring appearance at the least(w). 
It seems likewise regular to aver that the suit is 
still depending(o) ; though as a plea of this nature 
is not usually argued, but being clearly a good 
plea if true, is referred to the examination and in- 
quiry of one of the masters of the court as to the 
fact( p)^ it has been held that a positive averment 
that the former suit is depending is not necessary 
{q). And if the plaintiff sets down the plea to be 
argued, he admits the truth of the plea that a for- 
mer suit for the same matter is depending, and the 

tion, cannot, before a decree has been Urlin v. , 1 Vern. 332. 1 Ves. 

made in such other suit, be pleaded 545 ; Daniel v. Mitchell, 3 Bro. C. 

in bar, see Houlditch v. Marquis of C. 544; Anon. 1 Ves. Jr. 484. 2 

Donegall, 1 Sim. & Stu. 491 ; but, Ves. & B. 110; Jackson v. Leaf, 1 

that where the parties in both courts Jac. & W. 229. 

are the same, it may be pleaded for (/) See Morgan v. , 1 Atk. 

the purpose of obtaining a reference 408. See also Foster v. Vassnll, 3 

to a master, to inquire whether the Atk. 587, and Lord Dillon v. Alva- 

suits are for the same matter(l), see res, A Ves. 357. 

Murray v. Shadwell, 17 Ves. 353, (m) Devie v. Lord Brownlowe, in 

and of getting a decision, upon his Cha. 23d July, 1783, rep. Dick. 611. 

report of the fact, as to the validity of (n) Anon. 1 Vern. 318; Moor v. 

the plea, and consequently a deter- Welsh Copper Covip. 1 Eq. Ca. Ab. 

mination of the question whether the 39. 

plaintiff should or should not be al- fo) 3 Atk. 589. 

lowed to proceed in the suit in which (p) Ord. in Ch. ed. Bea. 176, 177- 

the plea has been filed. Barnard, 85. 2 Ves. & Bea. 110. 

And see on this subject generally, (f/) Urlin v. , 1 Vern. 332. 

(1) And see 14 ./. R. 501. 



PLEAS. 309 

plea must therefore be allowecl(r) unless it is de- 
fective in form(5). As the pendency of the former 
suit, unless admitted by the plaintiff', is made the 
immediate subject of inquiry by one of the mas- 
ters, a plea of this kind is not put in upon 

oath(0. 

It is not necessary to the sufficiency of [*248] 
the plea that the former suit should be 
precisely between the same parties as the latter. 
For if a man institutes a suit, and afterwards sells 
part of the property in question to another, who 
files an original bill touching the part so purchased 
by him, a plea of the former suit depending touching 
the whole property will hold(M). So where one 
part owner of a ship filed a bill against the hus- 
band for an account, and afterwards the same part 
owner and the rest of the owners filed a bill for 
the same purpose, the pendency of the first suit was 
held a good plea to the last(x) ; for though the first 
bill was insufficient for want of parties, yet by the 
second bill the defendant was doubly vexed for the 
same cause. The course which the court has 
taken where the second bill has appeared to em- 

(r) 1 Vcrn. 332. Anon. 1 Ves. 239; Carrick v. Young, i Madd. 

Jr. 484 ; Daniel v. Mitchell, 3 Bro. 437. See 3 Atk. 589, as to defects 

C C. &44. in the form of such a plea. 

(s) This is founded on a general (t) 1 Vern. 332. This however 

order of the court, that the plaintiff can scarcely be deemed to extend to a 

shall not be put to argue such a plea, case of a suit depending in a foreign 

but may obtain in the first instance, court. And see Foster v, Vassall, 

an order of reference to a master to 3 Atk. 587. 

inquire into the truth of it. Ord. in (m) Moor v. Welsh Copper Comp. 

Cha. Ed. Bea. 176, 177. Baker v. 1 Eq. Ca. Ab. 39. 

Bird, 2 Ves. Jr. 672; Murray v. (.r) Durandv. Hii,tchinson,'M.K\\. 

Shadwcll, 17 Ves. 353. 2 Ves. & B. 1771, in Cha(l). 
110; Carwickv. Young, 2 Swanst. 



(1) See form of the pica which was used in this case, in Beames' 
Pleas, 336. 



310 PtEAS. 

brace the wliole subject in dispute more complete- 
ly than the first, lias been to dismiss the first bill 
with costs, and to direct the defendant in the se- 
cond cause to answer upon being paid the costs of 
a plea allowed(i/), which puts the case on the se- 
cond bill in the same situation as it would have 
been in if the first bill had been dismissed before 
filing the second. Whore a second bill is brought 
by the same person for the same purpose, but in a 
diftercnt right, as where the executor of an admi- 
nistrator brought a bill, conceiving himself to be 

the personal representative of the intestate, 
['*^249] and afterwards ^procured administration 

de bonis non^ and brought another bill(2;), 
the pendency of the former bill is not a good plea. 
The reason of this determination seems to have 
been, that the first bill being wholly irregular the 
plaintiff could have no benefit from it, and it might 
have been dismissed upon demurrer. Where a 
decree is made upon a bill brought by a cre- 
ditor on behalf of himself and all other credit- 
ors of the same person, and another creditor comes 
in before the master to take the benefit of the de- 
cree, and proves liis debt, and then files a bill on 
behalf of himself and the other creditors, the de- 
fendants may plead the pendency of the former 
suit ; for a man coming under a decree is quasi a 
party(«). The proper way for a creditor in such 
a situation to proceed, if the plaintiff in the origi- 

(y) Croftf V. WortUy, 1 Ca. in Comn. 2 Atk. 44. 
Cha. 9AI. • (a) Nere v. Weston, 3 Atk. 557. 

(c) Hvggins V. York Building 1 Sim. & Stu. 361(1). 

(1) Also Edmunds v. ./iclmnl, F, Mad. 31. 



PLEAS. 



hi 



nal suit is dilatory, is by application to the court 
lor liberty to conduct the cause(6). 

If a plaintili' sues a defendant at the same 
time for the same cause at conmion law and in 
equity, the defendant after answer put in(c) may 
apply to the court that the plaintitf may make his 
election where he will proceed(</), but 
cannot plead the pendency of *the suit at [*250] 
common law in bar of the suit in equity(c), 
though the practice was formerly otherwise(y*). 
If the plaintitf shall elect to proceed in equity, the 
court will restrain his proceedings at law by in- 
junction, and if he shall elect to proceed at law the 



(6) See Powell v. fVallworth, 2 
Madd. R. 183 ; Sims v. Ridge, 3 
Meriv. 458 ; Edrtiunds v. Acland, 
5 Madd. 31 ; Fleming v. Prior, 5 
Madd. 4-23 ; Hand ford v. Storie, 2 
Sim. &Stu. 196(1)'. 

(c) 3 P. Wius. 90. 1 Ball & B. 
119. 319; Fisher v. Mee, 3 Meriv. 
45 ; Hogue v. Curtis, 1 Jac. it W. 
449; Browne v. Poyntz, 3 Madd. 
24 : Cowpland v. Bradoch, 5 Madd. 
14. 

(cZ) 3 P. Wms. 90. Anon. 1 Ves. 
Jr. 91. 1 Ball & B. 330 ; Pieters v. 
Thompson, Coop. R. 294(2). But 
there i.s a distinction in the practice 
where the court is uiiabK' at once to 
see that it is a case of" election. Sec 
Boyd V. Hcinzelman, 1 Ves. & Bea. 
381. 2 Ves. & Bca. 110; Mills v. 

Fry, 3 Ves. & Bea. 9, (1814). 

V. , 2 Madd. R. 395; Amnry v. 

Brodrick, 1 Jac. R. 530, aiul the 
cases therein cited, in the instance of 



a mortgagee taking the usual bond for 
repayment of the mortgage-money, he 
is not bound to elect, but may pro- 
ceed, under certain restrictions, upon 
his separate securities, at law and in 
equity. Schoole v. Sail, 1 Sch. and 
Lefr. 176. But where the plaintiff 
sues in both jurisdictions in an indi- 
vidual character, and can have in the 
former, only a part of the relief which 
he can obtain in the latter, by insti- 
tuting the suit in this court, he con- 
cludes himself from proceeding at 
law, and therefore of course is not en- 
tilled to the pri\ilege of .election. 
Mills V. Fry, 19 Ves. 377 (1815). 

(e) 3 P. Wms. 90. And it should 
seem the pendency of :i suit in an ec- 
clesiastical court, for payment of a 
legacy, could not be pleaded to a bill 
for similar relief here. Howell v. 
Waldron, 1 Ca. in Cha. 85. 

(/) Ord. in Cha. Ed. Bea. 177. 



(1) And as to cases of creditors coming in under such a suit see, 
amongst others, Codwine v. Gelston, on appeal, 10 J. R. 507 ; J)PDer- 
mull V. Strong, 1 J. C. R. GG7; Wilder v. Keeler, 3 Paige's C. R. 
10-1. 

(2) Livingston v. Kane, 3 J. C. R. 224 ; Sanger v. Wood, lb. 41G ; 
Rogers v. F^osburgh, 4 lb. ii\; Gibbs v. Perkinwn, 4 Hen. Sf Munf. 
415. 



312 PLEAS. 

bill will be dismissecl(«-)( 1 ). But if he should fail at 
law, this dismission of his bill will be no bar to his 
bringing a new bill(/i). 

Pleas in bar of matters of record, or of matters in 
the nature of matters of record, in some court not 
being a court of equity, may be 1, a fine, 2, a reco- 
very, 3, a judgment at law, or sentence of some 
other court. 

1. A plea of a fine and non-claim, though 
[251] a legal *bar, yet is equally good in equi- 
ty{i) provided it is pleaded with proper 
averments(Zc)(2). Where a title is merely legal, 
though the defect is apparent upon the face of the 
deeds, yet the fine will be a bar in equity ; and a 
purchaser will not be affected with notice so as to 
make him a trustee for the person who had the 
right. For a defect upon the face of title-deeds is 
often the occasion of a fine being levied(Z). And 
even a fine levied upon bare possession, with non- 
claim, may be a bar in equity, if a legal bar, though 
with notice at the time the fine was levied(r/i). But 
with respect to equitable titles there is a dis- 

(g) 3 P. Wms. 90, note. Moiisley Atk. 630 ; Ilildyard v. Cressij, 3 

V. Basnett, 1 Ves. & Bea. 382, note. Atk. 303 ; Page v. Lever, 2 Ves. Jr. 

Fitzgerald v. Sucomb, 2 Atk. 85. 450 ; Butler v. Every, 1 Ves. Jr. 

{h) Countess of Plymouth v. Bla- 136. S. C. 3 Bro. C. C. 80; Dobson 

don, 2 Vern. 32. v. Leadbcater, 13 Ves. 230. The 

(z) Thynne v. Townsend, W. object of the averments is of course 

Jones, 416; Salisbury v. Baggot, to show that it was an effectual fine, 

1 Ca. in Cha. 278. 2 Swanst. 610 ; 13 Ves. 233. 
Watkins v. Stone, 2 Sim. & Stu. (0 3 Atk. 631. 
560. (m) Brcreton v. Gamut, 2 Atk. 

(Ar) Story v. Lord WiJidsor, 2 240. 

(1) Livingston v. Katie, 3 J. C. R. 224; Rogers v. Voxburgh, 
4 lb. 84. Where the remedies at law and in equity are inconsistent, 
any decisive act of the party, with knowledge of his rights and of the 
facts, determines his election. Sanger v. Wood, 3 Jb. 416. 

(2) See the form of a plea of a fine and non-claimj Willis, 337. 



PLEAS 313 

tinction. For where the equity charges the lands 
only, the fine bars(M), but where it charges the 
person only in respect of the land(o), the fine does 
not bar(p). Therefore if a man purchases from a. 
trustee, and levies a fine, he stands in the place of 
the seller, and is as much a trustee as the seller 
was(r), provided he has notice of the trust, or is a 
purchaser without consideration(5). So if 
the grantee of *a mortgagee levies a fine [*252] 
that will not discharge the equity of re- 
demption(^). But there are cases of equitable as 
well as of legal titles, in which a fine and non- 
claim will bar, notwithstanding notice at the time 
of levying the fine(2«). It has been determined, 
however, that if a fine is levied where the legal 
estate is in trustees for an infant, and the trustees 
neglect to claim, the infant, claiming by bill within 
five years after he attains twenty-one, shall not be 
barred(a:). But perhaps this should be understood 
as referring to the case of a fine levied with notice 
of the title of theinfant(2/). Where a title to lands 
is merely equitable, as in the case of an agreement 
to settle lands to particular uses, claim to avoid 
the fine must be by siibpoena(z). The pendency 

(n) Giford v. Phillips, cited 2 379, 380. 

Swanst. 612. (02Atk. 631. Conira, 2 Fteeia. 

(o) Earl Kenoul v. Grevil, cited 21. 69 ; but see 1 Sch. and Lefr. 378. 

2 Swanst. 611, S. C. 1 Ca. in Cha. 380. 

295. (m) 2 Atk. 631. Hildyard v. Cres- 

(p) 1 Ca. in Cha. 278. 2 Swanst. sy, 3 Atk. 303 ; Shields v. Atkins, 3 

611 ; and see 2 Atk. 390. 1 Sch. & Atk. 560. 

Lefr. 381. (x) Allen v. Saycr, 2 Vern. 368. 

(r) 2 Atk. 631. Kennedy v. Daly, (y) Wych v. E. I. Comp. 3 P. 

1 Sch. & Lefr. 355. Wms. 309; Earl v. Countess of 

(s) Gilb. For. Rom. 62. Bovy v. Huntingdon, ib. 310, note G. 

Smith, 2 Ca. in Cha. 12-4. S. C. 1 (z) Salisbury v. Baggott, 1 Ca. 

Vern. 60, and 1 Vern. 84 ; on re- in Cha. 278. S. C. 2 Freem. 21, and 

hearing, see 1 Vern. 144, the decree more accurately reported, from Lord 

was reversed : but see 1 Sch. and Left'- Nottingham's MSS, 2 Swj^nst. £03. 

40 



314 PLEAS. 

of a suit in equity will thorefore in equity prevent 
in many cases the running of a fine(a). Upon the 
whole, wherever a person comes in by a title oppo- 
site to the title to a trust estate(6), or comes in 

under the title to the trust estate, for a va- 
[*253] luable consideration, *without fraud, or 

notice of fraud, or of the trust(c) ; a fine and 
non-claim may be set up as a bar to the claim of 
a trust(</). When a fine and non-claim are set up 
as a bar to a claim of a trust by a person claiming 
under the same title, it is not sufficient to aver 
that at the time the fine was levied the seller of 
the estate, being seised, or pretending to be seised, 
conveyed ; but it is necessary to aver that the sel- 
ler was actually seised. It is not, indeed, requisite 
to aver, that the seller was seised in fee ; an aver- 
ment that he was seised ut de libero tenemento^ 
and being so seised a fine was levied, will be suffi- 
cient(e). A fine and non-claim may be pleaded in 
bar to a bill of review(y*). 

2. To a claim under an entail, a recovery duly 
suffered, with the deed to lead the uses of that re- 
covery, may be pleaded, if the estate limited to the 
plaintiff, or under which he claims, is thereby de- 
stroyed(o-). 

3. If the judgment of a court of ordinary juris- 
diction has finally determined the rights of the 
parties, the judgment may in general be pleaded 

(a) 2 Atk. 3£9, 390. Pincke v. 99. And see the cases cited above, 

Thornycroft, 1 Bro. C. C. 289. S. p. 251, note {k). 
C. 4 Bro. P. C. 92, Toml. ed. 1 Sch. (/) Lingard v. Griffin, 2 Vern: 

and Lefr. 132. 189. 

(6) Stoughton V. Onslow, cited 2 {g) Att. Gen. v. Sutton, 1 P. 

Swanst. 615 ; and 1 Freem. 311. Wms. 754; Salkeldv. Salkeld, 1763, 

(c) 1 Sch. and. Lefr. 380. before Lord Northington ; Brown v. 

{^d) Gilb. For. Rom. 63. Williamson, Trin, 1772, before Lord 

(e) 2 Atk, 630. 2 Scb. and Lefr. Bathurst. 



PLEAS. 315 

in bar of a bill in equity(/i). Thus where 
a bill was brought by a *person claiming [*254] 
to be son and heir of Jocelin, Earl of 
Leicester, and alleged that the earl, being tenant 
in tail of estates, had suffered a recovery, and had 
declared the use to himself and a trustee in fee, 
and that the plaintiff had brought a writ of right 
to recover the lands, but the defendant had posses- 
sion of the title deeds, and intended to set up the 
legal estate which was vested in the trustee, and 
prayed a discovery of the deeds, and that the de- 
fendant might be restrained from setting up the 
estate in the trustee, the defendant pleaded, as to 
the discovery of the deeds and relief, judgment in 
her favor in the writ of right ; and averred that the 
title in the trustee, which the bill sought to have 
removed, had not been given in evidence : and the 
plea was allowed(/). In this case the bill was 
brought before the trial in the writ of right, and 
the plaintiff had proceeded to trial without the dis- 
covery and relief sought by his bill for the purposes 
of the trial. The plea was subsequent to the judg- 
ment. It may be doubted, therefore, whether the 
averment that the title in the trustee had not been 
given in evidence on the trial of the writ of right 
was necessary, as the judgment was a bar, as a 
release subsequent to the filing of the bill 

(7i) See Throckmorton v. Finch, cox v. Slurt, 1 Vern. '77 ; Bissell v. 

4 Co. Inst. 86. S. (J. cited also in a Axtell, 2 Vern. 47 ; Penville v. Lus- 

tract j)ublished at end of 1 Rep. in co)n6e (1728) rep. 2 Jac. and W. 201. 

Cha. on Jurisd. of the Court of Cha. :! Bro. C. C. 72. 1 Sch. and Lefr. 

Hunby v. Johnson, 1 Rep. in Cha. 201. Ord in Cha. 19, Ed. Bea. 

243 : Bluck v. Elliot, Finch. R. 13 ; (i) Sidney, styling himself Earl of 

Pitt V. Hill. Finch. R. 70. Temple Leicester, against Perry, iu Chan. 

V. Baltinglass, Finch. R. 275. Cor- 23d July, 1783. 
nell V. Ward, Fiuch. R. 239 ; WU- 



316 PLEAS. 

[*255] *vvould have been ; and if the plaintiffcould 
have avoided the effect of the judgment be- 
cause the title in the trustee had been given in evi- 
dence, it should seem that that fact, together with 
the fact of the judgment, ought to have been 
brought before the court by another bill in the na- 
ture of a bill for a new trial, either as a supple- 
mental bill, or as an original bill, the former bill 
being dismissed(A;). 

To a bill to set aside a judgment, as obtained 
against conscience(/), the defendant has been per- 
mitted to plead the verdict and judgment in bar 
(m)(2) ; but it may be doubted whether in this 
case the defendant might not have demurred to 
the bill, as there does not appear to have been any 
charge in the bill requiring averment to support 
the plea. A sentence of any(n), even a 
[*256] foreign court(o), may be a *proper defence 
by way of plea ; but the court pronouncing 
the sentence must at least have had full jurisdiction 

(^•) Respecting the dispute in the And see Sewel v. Freeston, 1 Ca. in 

time of Lord EUesmere, raised by Cha. 65 ; Shuter v. Gilliard, 2 Ca.. 

Lord Coke, upon the question whe- in Cha. 250 ; Armsted v. Parker, 

ther a court of equity could give re- Finch. R. 171 ; Huddlestone v. As- 

lief after a judgment at law, see 3 hugg, Finch. R. 171 ; Anon. 3 Rep 

Blackst. Comm. p. 54. Gilb. For. in Cha. 25. 

Rom. 56 ; and the tract on the juris- (?i) See the cases referred to page 

diction of the court of chancery, 253, note {h). 

comprising the order of the king (o) See Newland v. Horseman, 1 

(James the 1st), on the subject pub- Vern. 21. S. C. 2 Ca. in Cha. 74 ; 

lished at the end of 1 Rep. in Cha. Burrows v. Jemineau, Sel. Ca. in 

ed. 1715(1), and that order at end of Cha. 69. S. C. Mos. 1, Dick. 48; 

Gary's Reports, ed. 1650. Gage v. Bulkeley, 3 Atk. 215. S. C. 

(Z) 2 Ves. Jr. 135. 2 Ves. 556 ; White v. Hall, 12 Ves; 

(m) Williama v. Lee, 3 Atk. 223. 320. 

(1) See a more correct copy of this tract in the Collectanea Juridica, 
vol. i. p. 23 ; and also see Hallam's Const. Hist. vol. i. p. 370, 
(English edit.) 

(2) See the form of such a plea. Willis^ 548 ; and also the form of 
the plea used in Williams v. Lee, supra. 



PLEAS. 317 

to determine the rights of parties(p). If there is 
any charge of fraud, or other circumstances shown 
as a ground for reHef, the judgment or sentence 
cannot be pleaded(<2'), unless the fraud, or other 
circumstance, the ground upon which the judg- 
ment or sentence is sought to be impeached, be 
denied, and thus put in issue by the plea, and the 
plea supported by a full answer to the charge in 
the bill(r). Upon this principle the court of ex- 
chequer determined upon a bill brought by insurers 
of part of the property taken on board the Spanish 
ships at Omoa. The bill charged that the navy, 
on whose behalf, as captors, the defendants had in- 
sured, were not the real captors, or not the only 
captors ; that the Spanish ships struck to the land- 
forces ; and that although the court of admiralty 
had condemned the ships taken as prizes to the 
navy, yet that condemnation had been obtained in 
consequence of the king's procurator-general hav- 
ing withdrawn a claim made on behalf of the crown 
at the instance of the land-forces, and of an agree- 
ment between the sea and land-forces to make a 
division of the treasure ; and that the sentence was 
therefore, as against the plaintifls, the insurers, not 
conclusive. The defendants pleaded the 
*sentence of the Admiralty, both to disco- [*257] 
very of the facts stated in the bill, and to 

(p) Gage V. Bulkeley, 2 Atk. Ves. Jr. 135. 

215(1). . (^) 6 Ves. 596. As to the neces- 

(q) See 2 Ca. in Cha. 251 ; and sity of these averments in the plea, 

see the tract and order referred to in and the support of the plea by an- 

last page at the end of 1 Rep. in swer, see p. 2.39, et seq. 
Cha. and of Gary's Rep, ; and see 2 

(1) And see Van Wyck v. Seward, 1 Edvoardt' V. C. Reports, 327. 



318 PLEAS. 

the relief prayed. The plea was in many respects 
informal, but the court was of opinion that the 
sentence thus impeached could not be pleaded in 
bar to the discovery sought by the bill, and that 
as a bar to relief it ought to have been supported 
by averments negativing the grounds on which it 
was impeached by the bill(5). 

A will, and probate even in the common form, 
in the proper ecclesiastical court, which is in the 
nature of a sentence(f), is a good plea to a bill by 
persons claiming as next of kin to a person sup- 
posed to have died intestate(2«). And if fraud in 
obtaining the will is charged, that is not a suffi- 
cient equitable ground to impeach the probate ; for 
the parties may resort to the ecclesiastical court, 
which is competent to determine upon the question 
of fraud(ar). But where the fraud practised has 
not gone to the whole will, but only to some par- 
ticular clause, or if fraud has been practised to 

obtain the consent of next of kin to the pro- 
[*258] bate(i/), the courts of equity have *laid 

hold of these circumstances to declare the 
executor a trustee for the next of kin(z). Where 

(s) Parkinson v. Lecras, 23d Feb. ton, Mich. 1777, reported Ambl. 756. 

1781. 5Ves. 647; Griffiths \. Hamilton, 

(t) See 1 Atk. 516. 12 Ves. 298(1). 

\u) Jaunty v. Sealey, 1 Vern. 397. (y) As to the kind of relief which 

{x) Archer v. Afosse, 2 Vern. 8 ; may be given where a probate has 

Nelson v. Oldfield, 2 Vern. 76 ; Att. been obtained by fraud, see Barnesly 

Gen. V. Ryder, 2 Ca. in Cha. 178 ; v. Powel, 1 Ves. 284. 

Plume V. Beale, 1 P. Wms. 388. 2 {z) Marriot v. Marriot, in Exch. 

P. Wms. 287. 2 Atk. 324 ; Kerrick 1 Stra. 666, and argument of Lord 

V. Bransby, 7 Bro. P. C. 437. Toml. Ch. Baron Gilhert. Gilb.Ca. in Cha. 

ed. ; Meadows v. Duchess of King- 203. Ambl. 762, 763. 



(1) And see notes at page 123, an/ e; also Jone# v. t/o?ie5, 7 Price, 
663. 



PLEAS. 319 

there are no such circumstances the probate of the 
will is a clear bar to a demand of personal estate 
(3:) ; and where a testator died in a foreign country, 
and left no goods in any other country, probate of 
his will, according to the law of that country, was 
determined to be sufficient against an administra- 
tion obtained in England(a). 

Pleas in bar of matters in pais only, sometimes 
go both to the discovery sought, and to the relief 
prayed by the bill, or by some part of it ; sometimes 
only to the discovery, or part of the discovery ; 
and sometimes only to the relief, or part of the re- 
hef 

Pleas of this nature (which may go both to the 
discovery and relief sought by the bill, or by some 
part thereof, but which sometimes extend no far- 
ther than the relief) are principally : 1, A plea of 
a stated account ; 2, Of an award ; 3, A release(l) ; 

4, Of a will or conveyance, or some instrument 
controlling or affecting the rights of the parties -, 

5, A plea of any statute which may create a bar 
to the plaintiff's demand, as the statute for pre- 
vention of frauds and perjuries, or the statutes for 
limitation of actions, which may be considered as 
a plea of matter in pais ; for though the statute 
itself is usually set forth in the plea, yet that per- 
haps is unnecessary(2), and the substance 

*of the plea consists in the averment [*259] 

(z) 12 Ves. 307. (a) Jauncy v. Sealey, 1 Vern. 

397. 

(1) It is a strong rule of equity that a general release shall be con- 
fined to what was under consideration at the time of giving it. JiPIn- 
tyre v. Clarke, 1 Edwards' V. C Reports, 34. 

(2) In setting up a defence under a public statute, it is not nect""" 



320 PLEAS. 

of matter necessary to bring the case within the 
particular statute; and therefore if those matters 
appeared on the face of the bill itself it may be pre- 
sumed a demurrer would hold, though this has been 
doubted. 

1. A plea of a stated account is a good bar to a 
bill for an account(6). It must show that the ac- 
count was in writing, or at least it must set forth 
the balance(c). If the bill charges that the plaintiff 
has no counterpart of the account, the account 
should be annexed by way of schedule to the an- 
swer, that if there are any errors upon' the face of 
it, the plaintiff may have an opportunity of point- 

(6) Anon. 2 Preem. 62 ; 1 Vern. and W. 201 ; Irvine v. Young, I 

180; Dawson V. Dawson, 1 Atk. 1 ; Sim. and Stu. 333. 

Sumner v. Thorpe, 2 Atk. 1 ; Pen- (c) 2 Atk. 399(1). 
vile V. Luseomhe, (1728) rep. 2 Jac. 



ry, either in this court or in a court of law, that the pleader should set 
forth the statute in his plea, or that he should allege the existence of a 
statute of which the court is judicially bound to take notice. It is 
sufficient for him to state the facts which are necessary to bring the 
case within the operation of the statute; and to insist that upon these 
facts the plaintiff's right or remedy is at an end. The court will then 
judicially take notice of the existence of the statute and declare its 
legal effect upon the case as made by the pleadings. Per Chancellor 
Walworth, in Bogardus v. Rector, S^e., of Trinity Church, MS. 6 
August, 1833. Indeed, it seems more appropriate in this court to 
plead the facts merely which bring the case within the operation of the 
principle of the statute, than to plead the statute, in terms, as a bar. 
lb. But see Sailers v. Tobias, 3 Paige's C. R. 338. 

(1) Hodder v. Walls, 4 Price, 8 ; Bogardus v. Reclor, S^e. of 
Trinily Church, MS. Where a plea of a stated account speaks of the 
balance which was admitted upon it, and arers theaccounf to be Just 
and true, it must, nevertheless, be supported by an answer denying the 
receipt of any part of the money for which the defendant is called to 
account subsequently to the time when the account stated was adjusted. 
Bands v. TaggarVs administrator ^ 1 Gill & Johns. 311. 



PLEAS. 



321 



iiig them out(<Z). If crror(c) or fraM(](/) 
are cliarged(«-) they must *be denied by [*2G0] 
the pica as well as by way of ans\ver(/i?) ; 
and if neither error Jior fraud is charged, the de- 
fendant must by the plea aver that the stated ac- 
count is just an<i true to the best of his knowledge 
and behef(/). The dehvery up of vouchers at the 
time the account was stated seems to he a proper 
averment in a plea oi{k) this nature, if the fact was 
such(Z)(4). 

2. An award may be pleaded to a bill to set aside 
the av/ard and open the account(m) ; and it is not 



(rf) Hdnkey v. Simpson, 3 Atk. 
303. 

(e) On the subject of t!iis court's 
inlerfcrence, wlicre there is error iii a 
settled account, sec Anon. 2 Freein. 
62; Proud v. Combes, 2 Frcem. 183 ; 
S. C. 3 Rep. in Cha. 18, 1 Ca. in 
Cha. 55,2 Freem. 183, Nels. 100, and 
1 Eq. Ca. Ah. 12; Wright v. Coxon, 

I Ca. in Cha. 202 ; Beilell v. Bcull, 
Finch. R. 5 ; Dawson v. Dawson, 1 
Atk. 1 ; Bourke v. Bridg-ema.n, 1 
Barnard, 272 ; Roberts v. Kuffln, 2 
Atk. 112; Pit V. CholmondcLcij, 2 
Ves. 565 ; Jolmson v. Curtis, 3 tiro. 
C. C. 2titj ; Gray v. Minnet/iorpe, 3 
Ves. 103 ; Lord Hardwicke v. Ver- 
non, 4 Ves. 411 ; 5 Ves. 837 ; Kins- 
man v. Barker, 14 Ves. 26J(1). 

ij") As to its interference where 
the settlcuient of an account h.is hecn 
accompanied with fraud, see Vcrno7i 
V. VaiDdri/,2 Atk. 119; Acwmn.n v. 
Payne, 2 Ves. Jr. lyO ; Wharton v. 
JVlay, 5 Ves. 27; Beaumont v. Boult- 
bee, 5 Ves. 485 ; «. C. 7 Ves. 5'jy ; 

II Ves. 358; hangstuffe v. Taylor, 
14 Ves. 262 ; Drew v. Power, 1 



Sch. & Lefr. 18-1(2). 
{g) y Ves. 2G5, 266. 
{h) Gilb. For. Rom. 56. 1 Ca. in 
Cha. 2'J;t. 2 Freem. 62. 6 Ves. 
506. Clarke V. Earl of Ormonde, 1 
Jac. R. 116 And it seems, if the 
pLiintilf allege that he has no coun- 
terpiirt of the stated account, the de- 
fendant must aniie.x a copy tliereof to 
his plea. Hankcy v. Simpson, 3 
Atk. 303. And see above, p. 230, ei 
seq. 

(0 3 Atk. 70. 1 Eq. Ca. Ab. 39. 
2 Sch. & Lefr. 727. And see J^lat- 
thews V. Wal-'oyn, 4 Ves. 118. Mid- 
dleditch v. Sharland, 5 Ves. 87(3). 

(it) Gilb. For. Rom. 57. Walker v. 
Consett, Forrest's E.xch. R. 157. 
Ilodder v. Watts, 4 Pri. Exch. R. 8. 
And see Warton v. May, 5 Ves. 27. 

{I) 2 Atk. 252. See the case of 
Clarke v. Earl qf Ormonde, 1 Jac. 
R. 116. 

(»/i) Lin good v. Croucher, 2 Atk. 
395. Lingood v. Eade, S. C. 2 At!--. 
501. Burton v. Ellington, 3 Bre, 
C. C 196(5). 



(1) Ch'ippedvlahie v. Dechenenvs, 4 Crnneh, 306. 

(2) Blackledge v. Simpson, 1 Hayward's R. 259. 

(3) Bogardus v. Rector, <)-c., ofTrtnUy Church, MS. 

(4) See the form of a pica of a slated account, Willis, 550 ; and 
observe the notes there. 

(5) As to applications to ccfurce awards, see the case of Webder, 1 

41 



322 PLEASf. 

only good to the merits of the case, but likewise to 
the discovery sought by the bill(<>). But if fraud 

or partiahty are charged against the arbi- 
[*2G1] trators(p), *those charges must not only 

be denied by way of averment in the plea, 
but the plea must be supported by an answer 
showing the arbitrators to have been incorrupt 
and impartial(</) ; and any other matter stated in 
the bill as a ground for impeaching the award 
must be denied in the same manner(l)* 

3. If the plainti/f, or a person under whom he 
claims, has released the subject of his demand, the 
defendant may plead the release in bar of the bill 
(r), and this will apply to a bill praying that the 
release may be set aside(5)(2). In a plea of a re- 

(o-) TUlensonw. Peat, 3 Alk. 529. Auriol v. Smith, 1 Turn R. 121. 

jina/i. 3 Atk. 644. As to plea of an Dawson v. Sadler, 1 Sim. & Stu. 

award under an agreement to refer 537. 

the matters in dispute to arbitration, {q) 2 Atk. 3156. 6 Ves. 594. 596. 

entered into after l)ill liled, see Drij- 2 Ves. & B. 364 ; and see Allardes 

dc7i V. /?o6insoM, 2 Sun. & Stu. 529 ; v. Campbell, reported 1 Turn. 133, 

and see Ruwe v. Wood, 1 Jac. &. W. note. S. C. Bunb. 265. Rybott v. 

348. S. C. 2 Bligh. P. C. 595. Barrell, 2 Eden R. 131. 

(p) As instances, see Ward v. (/■) Boicer \. Swadlin,\ A\^.20\. 

Periam, cited 2 Atk. 390. 2 Ves. Taunton v. Pepler, 6 Madd. 166. 

3il6. S. C. reported 1 Turii. R. 131, Clarke v. Earl of Ormonde, 1 Jac. 

note. Chicot v. Lequesne, 2 Ves. R. 116. And see Roche v. Morgell, 2 

315. 2 Ves. jun. 135. Rryndl v. Sch. & Lefr. 721. 

Liusconibe, 1 Turn. R. 135. n. Good- (5) Pu^'^ij v. Desbouverie, 3 P. 

man v. Sai/crs, 2 Jac. & W. 249. Wms. 315. And with regard to this 



Jtuss. iSr •^^- 496, and note (a) there. For the form of a plea of ao 
award, see Willis, 553. 

(1) And see Henrickv. Blair, I J. C. R. 101 ; Shepard w, Merrill ^ 
2 lb. 276 ; Underhill v. Van Cortlandt, 2 lb. 339 ; Bouck v. Wilber, 
4 lb. 405 ; Toppan v. Heath, 1 Paige's C. R. 293 ; Campbell v. 
Western, 3 lb. 124 ; Filzpatrick v. Smith, 1 Desau, 245 ; Alwyn v. 
Perkins, 3 lb. 297 ; Shermer v. Beale, 1 Wash. 1 1 ; Pleasants r. 
Ross, lb. 156; jVorris v. Ross,2 Hen. <y. J\lunf. 408 ; Davy's execu- 
tors V. Shaio, 7 Crunch, 171. 

(2) See the form of such a pica, Willis, 556. 



PLEAS. 



323 



lease the defendant must set out the consideration 
upon which the release was madc(/). A plea of 
a release therefore cannot extend to a dis- 
covery of the consideration; *andifthatis [*262] 
impeached by tlie bill, the plea must be as- 
sisted by averments covering the grounds on which 
the consideration is so impeached(l). Thus, to a 
bill stating various transactions between the de- 
fendant and the testator of the plaintiff, and impu- 
ting to those transactions fraud and unfair dealing 
on the part of the defendant, and impeaching ac- 
counts of the transactions delivered by the defend- 
ant to the testator on the ground of errors, omis- 
sions, unfair and false charges, and also impeach- 
ing a purchase of an estate conveyed by the testa- 
tor to the defendant in consideration of part of the 
defendant's alleged demands, and praying a gene- 
ral account, and that the j)urcliase of the estate 
might be set aside as fraudulently obtained, and 
the conveyance might stand as a security only for 
what was justly due from the testator's estate to 
the defendant; a plea of a^*eed of mutual release, 
extending to so much of the bill as sought a dis- 
covery, and prayed an account of dealings and 
transactions prior to and upon the day of the date 

latter proposition, it may l>e rpmarked, Freeland-v. Johnson, 1 Anstr. Et. 

that it is in like manner necessary R. 276. Ua/Zerv. Glanvillc, 5 Bro. 

that the defendant should deny tlie P. C. 555. 'I ond. cd 2 Sch. & Lcjr. 

equitable circumstances cliarged for 727. G JNiadd. (j4. 2 Sim. & Stu. 279. 

thepurposeof impeaching the release, {t) Giili. For. Rom. 57. GriJ/ith v. 

by averments in his plea, and by an Manser, Hardr. KiS. 2. Sch. iV Lefr. 

answer to tlje same effect, IJuijd v. 72H ; and see ]]'ciller v. Glanville, 5 

Stnith, 1 Anstr. Exch. R. 258. Bro. P. C. 555. Toml. ed. 

(1) And see Al/en v. Randolph, 4 J. C. R. 693; Bull >n v. Gard- 
ner, 3 Paige's C. R. 273; also (but winch was the case of an answer) 
Davies v. Spurling, 1 Tamfy^i's R- 199. 



324 PLEAS. 

of the deed of release, and all relief and discovery 
grounded thereupon, and stating the deed to have 
been founded on a general settlement of accounts 
on that day, and to have excepted securities then 
given to the defendant for the balance of those ac- 
counts which was in his favor, and averring only 
that the deed had been prepared and executed 
without any fraud or undue practice on the part of 
the defendant, w as overruled. The consideration 
for the instrument was the general settlement of 

accounts; and if those accounts were liable 
[*263] to the imputations cast upon *them by the 

bill(M), the release was not a fair transac- 
tion, and ought not to preclude the court from de- 
creeing a new account. The plea therefore could 
not be allowed to cover a discovery tending to im- 
peach those accounts, ami the fairness of the set- 
tled accounts was not put in issue by the plea, or 
supported by an answer denying the imputations 
charged in the bill. The plea indeed was defec- 
tive in many other particulars, necessary to sup- 
port it against the charges in the bill ; and to some 
parts of the case made by the bill the release did 
not extend(.r). A release pleaded to a bill for an 
account must be under seal(?/) ; a release not 
ipider seal must be pleaded as a stated account 

4. To a bill brought upon a ground of equity b}' 

(u) Though an account be stated (.r) Roche v. Morgcll, 2 Sch. & 

Vinder hand and seal, yet if there aj)- Lefr. 721(1}. 

pear any mistake in it the court will (?/) But it need not be signed, 

relieve. See the cases cited above, Taun'.on v. Pcplrr, (5 Madd. 106. 

25!), note (e). (z) Ciilb. For. Rom. 57. 

(1) Ar.(] sec Bollon v, Gardner, 3 Paige's C. Ji. 273. 



PL EAS. 325 

an heir at law against a devisee, to turn the devi- 
see out of possession, the devisee may plead the 
will, and that it was duly executed(«!)(^l). But in 
cases of this kind where the hill has also prayed a 
receiver, a plea extending to that part of the hill 
has heen so far overruled, as it might he necessa- 
ry for the court in the progress of the cause to 
appoint a recciver(&). Upon a hill filed hy an 
heir against a person claiming under a 
^conveyance from the ancestor, the de- [*264] 
fendant may plead the conveyance in bar 
of the suit. To a bill by one partner in trade 
against his co-partner for discovery and relief re- 
lative to the partnership transactions, a plea of the 
articles of partnership, hy which it was agreed 
that all diflerences which might arise between the 
partners should be referred to arbitration, and that 
no suit should be instituted in law or equity until 
an offer should have heen made to leave the mat- 
ter in difference to arbitration, and that offer had 
been refused, has been allowed(r). This case has 
been much questioned ; and it now seems to be de- 
termined that such an agreement cannot be plead- 
ed in a bar of suit(<i), nor will the court compel a 
specific performance of the agreement(e). Indeed 

(a) Anon. 3 Atk. 17. Anstis v. Mackintosh, 2 Atk. 5G9. 

Dowsing, cke(] 2 Ves. 361. Mcadoios (d) Satterly \. Robinson, Exch. 

V. Duch. of Kingston, Mich. 1777, 17 Dee. 1791. Michcll v. I/arris, 4 

reported AmW. 75(i. 3 Mcriv. 171. Bro. C. C. 311. S. C. 2 Ves. Jr. 129. 

(6) Anon. 3 Atk. 17, and Meadows Street v. Rigby, 6 Ves. Jr. 815. 14 

V. Duck, of Kingston. But see 2 Ves. 270. Waters v. Taylor, 15 

Ves. 30-3, 3(;3. Ves. 10. 

(c") Ilalfhide v. Penning, 2 Bro. (e) G Ves. Jr. 818. Milncs v. 

C. C. 33G. Contra, Wellington v. Gcry, 14 Ves. 400. 

(1) See the form of such a plea, Willis, 559; and observe (he 
latter part of note (6) there. For another form of this species of plea, 

see 2 Equity Draft. 11 G. 



326 PLEAS. 

it seems impossible to maintain that such a contract 
should be specifically performed, or bar a suit, un- 
less the parties had first agreed upon the previous 
question, what were the matters in diflference, and 
upon the powers to be given to the arbitrators, 
amongst which the same means of obtaining dis- 
covery upon oath, and production of books and 
papers, as can be given by a court of equity might 
be essential to justice. The nomination of ar- 
bitrators also must be a subject on 
[*265] *vvhich the parties must previously agree; 
for if either party objected to the person 
nominated by the other, it would be unjust to com- 
pel him to submit to the decision of the person so 
objected to as a judge chosen by himself It must 
also be determined that all the subjects of differ- 
ence, whether ascertained or not, must be fit sub=- 
jects for the determination of arbitrators, which if 
any of them involved important matter of law, they 
might not be deemed to be. 

5. The statute for prevention of frauds and per- 
juries(y)(l) may be pleaded in bar of a suit to 
which the provisions of that act apply(o-)(2). This 

(/) 29 Car. 11. c. 3. hj\. Thompson, 2 Cox R. 271. Gun- 

(g) Gilb. For. Rom.Gl ; Bawdes v. tcr v. Halsey, Ambl. 586. Jordan v. 

Amhurst, Pre. in Cha. 402; O'Reil- Sawkins, 3 Bro. C. C. 388. S. C. 1 

1) And see 2 Revised Slatides of Jfew-York, 134, 135. 301. For 
the form of a plea of tlie statute of frauds to a bill for specific "per- 
fonnTincc, see 2 Equiti/ Draft. 107, (2J edit.); but observe Ibe note 
there, whereby it appears that this plea was overruled and directed to 
stand for an answer ; and see the text at page 267, post. There is ano- 
ther precedent, being- in bar to so much of a bill as sought to compel 
the specific performance of a parol agreement for a lease. 2 Equity 
Draft. 112, (2d edit.) 

(2) But see page 207, j30«i. 



PLfiAs. 227 

form of pleading generally requires negative aver- 
ments to su|)port the dvience{h). Thus, to a bill 
for discovery and execution of a trust, the statute, 
with an averment that there was no declaration of 
trust in writing, may be pleaded(i), though 
in the case cited the plea *was overruled [*266] 
by an answer, admitting, in effect, the 
trust. To a bill for a specific performance of agree- 
ments, the same statute, with an averment that 
there was no agreement in writing signed by the 
parties, has been also pleaded(A'). It has been un- 
derstood that this plea extended to the discovery 
of a parol agreement, as well as to the performance 
of it, except where the agreement had been so far 
performed that it might be deemed a fraud on the 
party seeking the benefit of it, unless it was com- 
pletely carried into execution(Z), and cases have 
been determined accordingly(w). This has of late 
been the subject of much discussion, and some con- 

Ves. Jr. 402. Main v. Melbourn, Z?afts, 16 Ves. 262. 

4 Ves. 720(1). As to the equitulilc {i) Coltington v. Fletcher, 1 Atk.- 

grounds ujion which a case may be 156. 

exempted from the operation of the {k) ATusscll v. Cooke, Prec. in 

Statute of Frauds, see 3 Yes. 38, Chan. 533. Cldld v. Godolpltin, 

note (a). cited, 2 Bro. C. C. 566. S. C. Dicli. 

(/i) ateicart v. Careless, cilid 2 'M. Child v. Comber, 3 Swaust. 

Bro. C. C. 565. Dick. 42. Moure v. 423, n. Haukins v. Holmes, 1 P. 

Edwards, 4 Ves. 23. Bowers v. Wms. 770. Clerk v. Wright, 1 Atk. 

Cator, 4 Yes. 91. 2 Ves. & B. 364. 12. 

And where there are not equitabio (/) That this is the construction 

circumstances stated in the bill, which put upon acts of pari perl'onnance, 

might operate to prevent the ri hif see I iSch, & Lefr. 41. 3 iVreriv. i:46. 

soui^lit by tlie plainliH' beuig barred AJurpkclt v. Jones, 1 tSwanst. 172, 

by llie statute, but the agreement is and llic aulhonties therein relerred 

alleged to have been in vvritnig, and lo(l). 

facts arc charged in evidence tlu'reof, (7;i) Hollis v. Whiteivg, 1 Ycrn. 

negative averments are also requisite 15l ; Whaley v. Bagnul, 1 Bro. P. 

to the defence, Evans v. Harris, 1 C 345, 'loml. cd. ; and see \\ hit- 

Ves. &. B. 361; and see Jones v. bread v. Brockliurst, 1 Bro. C. C 



(1) Harris v. Knicker backer, on appeal, 5 TVe7ideU's R. 63d ; S. 
C. 1 Faii-e's C. R, 209. 



328 



PLEAS. 



trariety of decision. In one case(M) the court ap" 
peared to have conceived that the courts of equity 
in determining cases arising upon this statute had 
laid down two propositions founded on rules of equi- 
ty, and had given a construction to the act accord- 
ingly, which amounted to this, that the act was to 

be construed as if there had been an express 
[*267] exception to the *extent of those rules in 

favour of courts of -equity ; and that no ac- 
tion was to be sustained except upon an agreement 
in writing, signed according to the requisition of 
the statute, and except upon bills in equity, where 
the party to be charged confessed the agreement 
by answer, or there was a part performance of the 
agreement. It was therefore determined that to 
the fact of the asrreement the defendant must an- 
swer. But the court, afterwards, upon a rehear- 
ing, allowed the plea(o). In subsequent cases 
this subject was much discussed, and the question 
was particularly considered, whether, if the defend- 
ant admitted by answer the fact of a parol agree- 
ment, but insisted on the protection of the statute, 
a decree could be pronounced for performance of 
the agreement without any other ground than the 
fact of the parol agreement thus confessed. At 
length it seems to have been decided, that though 
a parol agreement be confessed by the defendant's 
answer, yet if he insists on the protection of the 
statute no decree can be made merely on the 
ground of that confession(/?) ; and it may now, ap- 

404; S. C. '2 Vfs. & Bea. 153, n ; (o) Whitchurch v. Bevis. on re- 

Whilchurch v. Bevis, 2 Bro. C. C. hearing, Hil. vac. 1789, principally 

559. on the authority of Whalcy v. Bag- 

(n) Whitchurch v. Bevis, in Ch. nal, I Bro. P. C. 315. Tom), cd. 

8 Feb. 17b(J, reported 2 Bro. C. C. (p) 1 Bro.C. C. 41G ; Whitchurch 

559. "'.-IS. 2 Bro. C. C. 559 ; 4 Ves. 



PLEAS. 329 

parently, be concluded that a plea of the statute 
cannot in any case be a bar to a discovery of the 
fact of an agreement : and that as the benefit of 
the statute may be had if insisted on by answer, 
there can be no use in pleading it in bar 
*of relief Whether the same rule would [*268] 
be applied to a confession of a trust by an 
answer, which may be considered as a declaration 
of the trust in writing, signed by the party, as indeed 
the confession of a parol agreement by answer 
might also be deemed, seems to be an import- 
ant question, not agitated in the cases decided 
with respect to other agreements, and upon 
which it may be very difficult to make a satisfac- 
tory distinction. In the cases in which it was 
formerly considered that a plea of this statute was 
the proper defence, it was conceived that any mat- 
ter charged by the bill which might avoid the bar 
created by the statute must be denied, generally, 
by way of averment in the plea, and particularly 
and precisely by way of answer to support the 
plea. But according to one case(^), if any such 

Jr. 23, 21 ; C Ves. 37 ; 12 Ves. 471 ; Bro. C. C. 404. S. C. 2 Ves. & B. 
15 Ves. 375(1). 153, n. 

(9) Whitbread v. Brockhurst, 1 

(1) Tn a suit for a specific pciformance of a contract in relation to 
land, if tlie bill states tliat an agreement was made, on detnurrer to the 
bill, tlie contract will be presumed to have been reduced to writing' and 
signed b}' the parties or their agents, unless the contrary appears. If 
the agreement, however, appears in the bill to have been a parol agree- 
ment and no facts are alleged to take the case out of the statute, the 
defendant may demur to the bill. Cozine v. Graham, 2 Paige's C. R. 
Ill ; 2 Revised Statutes of J\r. Y. 134, 135. And for cases of parol 
agreements and part performance, see, among others, Welmore v. 
While, 2 C. C. E. 87, {sed vide, Jackson^ ex dem. Smith v. Pierce, 2 

42 



330 PLEAS. 

matter were charged in the bill it became impos- 
sible to plead the statute in bar; the court having 
determined tliat denial of the matter so charfjed 
made the plea double(r), and therefore informal ; 
and it may now be doubtful v» hether a plea of the 
statute ought in any case (except perhaps the case 
of a trust) to extend to any discovery sought by 
the bill, and indeed whether it ought not to be 
deemed a needless and vexatious proceeding if con- 
fined to relief(5). 
[*269] *The statute for limitation of actions(<) 
is likewise a good plca(z<)(2). But if the bill 
charges a fraud, and that the fraud was not disco- 
vered(a:) till within six years before filing the bill, 
the statute is not a good plea, unless the defendant 
denies the fraud(?/), or avers that the fraud, if any, 
was discovered within six years before filing the bill 

(r) On the suhjpct of double pleas, Easl India Comp. 3 P. Wms. 309 ; 

see hereafter, pp. 2t)5, 296. Lacon v. Lacon. 2 Aik. 395 ; EaH 

(s) As to the effect of insisling on of Strafford v. Blalceuay, G Bro. P. 

the statute by answer, or by plea, and C. 630, Toml. ed.; Barber v. Barber, 

wlii'ther necfssary, see Newton v. 18 Ves. 286, and the cases therein 

Preston, Pre. in Ch. 103. See also cited. 

Kirksind Webb, Pr. inCh.84. And (z) See 2 Sch. & Lefr. 631 and 

see Rove v. Teed, 15 Ves. 372. 18 633, ai,d following pages, and the 

Ves. 182. Morphett v. Jones, 1 cases therein cited ; and 2 Ball tfe B. 

Swanst. 172(1). 118. 

(t) 21 Jac. I. c. 16. {y) Bicknell v. Gougli, 3 Atk. 

(u) Gilb. For. Rom. 61 ; Wych v. 558(3). 



J. R. 221); Phillips v. Thompson, 1 J. C. R. 'i2^ ; Parkhurst v. 
Van Cortlandt, lb. 273; also note of cases at page 119, onfe ; and 
English cases well collected in Bhtnt's Ambler, p. 585, noLe (2). 

(1) Cuzine v. Sleeker, 2 Paige's C. R. 177. 

(2) See the form of such a plea, Willis, 562. And obserre the note 
at page 273, post. Vor ulher (orms, see 2 Equity Drcifl. 113, 114; 
Beames on Pleas, 161. 

(3) Goodrich v. Pendleton, 3 J. C. R. 384 ; and see J\Iilnes v. 
Cowley, 4 Price, 103. 



PLEAS. 331 

(z). And Ihough the statute of limitations is a bar to 
the claim of a debt, it was formerly determined not 
to be a bar to a discovery w Isen the debt became 
due ; for if that had been set forth it would appear to 
the court whether the time limited by the statute 
was elapsed(«), but later decisions have been to 
the contrary(6). These decisions are stated to 
have been founded on a rule adopted of late years, 
that where a demurrer to relief would be good, 
the same ground of demurrer would extend to the 
discovery on which the relief prayed was founded ; 
and applying this rule, originally confined 
*to demurrers, to pleas also(c). It may [*270] 
be doubted whether in this extension of 
the rule to pleas the difference between a plea and 
demurrer has been sufficiently considered. A de- 
murrer founds itself on the bill, and asserts no 
matter of fact the truth of which can be disputed. 
A plea, on the contrary, asserts a fact the truth of 
which is put in issue by the plea. When therefore 
the statute of limitations is pleaded to a demand, 
and the question to be tried on the issue joined 
upon the plea is, whether the debt became due 
within six years before the filing of the bill, it is 
denying the plaintiff the benefit of that discovery 
in aid of proof which is allowed in all other cases, 
to hold that a plea of the statute of limitations, 
with an averment that the cause of action, if any, 

(z) South Sea Comp. v. Wymnnd- (b) Suilon v. Earl nf Scarborough, 

sell, 3 P. Wms. 143 ; Sutton v. Earl 9 Vos. Jr. 71, and other aulhoriiics 

of Scarborough.-9 Vcs. 11. But ac- thfic citeil. An<] see Bailtie v. Sib- 

cording to Wkilbrcadw Brnckhurst, bald, 15 Vps. 185. Cork v. Wilcock, 

1 Bro. C. C. '101, aTid 2 Vrs. & B. 5 I\Ja<!d. 328. 

153, n. this should be considered a (c) Si e the distinction taken on 

double plea. this subject in James v. Sadgrove, J 

(a) Macworth v. CI! f Ion, 2 Atk. Sim. & 6tu. 4. 
51. 2 Sch. & Lcfr. G35. 



332 PLEAS. 

occurcd six years befcre the filing of the bill will 
be a bar to a discovery of the truth of that aver- 
ment(c). In the case of money received by the 
defendant for the use of the plaintiff, and where 
the sums received, as well as the times when they 
were respectively received, may rest in the 
knowledge of the defendant only, it may amount 
to a complete denial of justice to hold that 
a plea of the statute of limitations, with such 
an averment, is a bar to any discovery as to the 
sums received, and when received, and of whom, 
and as to entries in books, and other papers, which 
discovery might enable the plaintiff to 
[*271] *prove the falsehood of the plea by witness- 
es and production of papers, as well as by 
the defendant's answer. Where a particular spe- 
cial promise is charged to avoid the operation of 
the statute(^/), the plaintiff must deny the promise 
charged by averment in the plea(c), as well as by 
answer to support the plca(/). Where the demand 
is of any thing executory, as a note for payment 
of an annuity, or of money at a distant period, or 
by instalments, the defendant must aver that the 
cause of action(o') hath not accrued within six 
years, because the statute bars only as to what 
was actually due six years before the action brought 

(c) This arfjunient is supported by 1 Bro. Ch. Ca. 404, wouIJ bo a dou- 
Cork \. Wilcock, 5 Madd. iiiS; and bic ploa(l). 

1 Sim. & Stu. G. (./) See on this subject, Baylcy 

(d) See Aiidreirs v. Brown, Pre. \. Adams, G Ves. 586 ; 5 JMadd.330; 
in Cha. 385. and 1 Sim. & Siu. 6. 

(e) Anon. 3 Atk. 70. But, this, ac- {g) 2 Stran<;e, 1291. 
cording to Whilbrcad v. Brocklnirst, 



(1) See Kane v. Blood good, 7 J. C. R. 90. 



PLEAS. 333 

(/^). Upon a bill for discovery of a title, charging 
fraud, and praying possession, the statute of limi- 
tations alone is not a good plea to the discovery, so 
far as the charge of fraud extends, for the defend- 
ant must answer to the cliarge of fraud(«), and 
the plea must put the fraud in issue(l). The sta- 
tute of limitations may be pleaded to a bill 
to redeem a mortgage(A-) if the ^mortgagee [^272] 
has been in possession twenty years(Z) ; and 
indeed a demurrer has been allowed in this case 
(wz)w here the possession has appeared upon the face 
of the bill(w), though some cases seem to be the 
contrary. (o). To a bill, on an equitable title to 
presentation to a living, seeking to compel the de- 
fendant to resign, plenarty for six months before 
the bill was filed may be pleaded in bar, the sta- 
tute of Westminster the second(p) being consider- 
ed for this purpose as a statute of limitation, in 

(h) 3 Atk. 71. See above, p. 2G9, statute, see 1 Cox R. 149. 2 Sch. & 

note (z). And see the case of Hovy Lefr, G30. C32. 1 Ball & B. 107. 17 

V. Hony, 1 Sim. &Stu. 5(58, in which Ves. 97. 99. 19 Ves. 184. 2 Jac. & 

the fact of an intermediate acknow- W. 145. 187; and see Blewit y, 

Icdgment of the |)laintili''s right hav- Thovias, 2 Ves. Jr. 6G9. 

ing been made, defeated the jjiea. (/) Aggas v. Pickercll, 3 Atk. 225. 

(i) Bickncll V. Gough, 3 Atk. 558. 2 Ves. Jr. 280(2). 

2 Sch. &. Lef G35. (m) 3 P. Wnis. 287, note. See 

(k) On the question whether the also 1 Vern. 418, and Beckford v. 

statute itself ap|)]ies to a case of tiiis '/"obin, ab. p. 213, n. 2 Sch. & Lefr. 

kind, or whether the rule that twenty 638. And see Hudle v. Ilcalcij, 1 

years possession by the mortgagee, Ves. &, B. 53G, and tlic cases therein 

subject to the usual exce[)iions of cited. 

infancy, &c. without his doing any (n) Edsell v. Buchanan, 4 Bro, 

act which is to he regarded as an ac- C. C. 254. 

knowlcdgment that the relation of (o) 3 Atk. 225, 22G, and the au- 

debtor and creditor still subsists, has thorities there cited, 

been adopted in courts of equity, in (p) 13 Edvv. I. c. 5. 
conformity with the provisions of the 

(1) And see the decision of Chancellor Walworth, in Bogardus v. 
Rector, SfC, of Trinity C/iurch, MS. 6 August, 1833. Tliere is no 
limitation, in point of time, williin which a bill for discovery in aid of 
an action at law must be filed. J\limt v. Scott, 3 Price, All. 
(2) And see Elmendorfv. Taylor, 10 Wheat. 152. 



334 PT.EAS. 

bar of an equitable as well as of a legal rigbt(^). 
But if a quare impedit is brought before the six 
months are expired, though the bill is filed after, 
it may be in some cases a ground for the court to 
interfere(r), and consequently plenarty would not 
in such cases be pleadable in bar. Tiie statute of 
limitations may also be pleaded to a bill of revivor, 
if the proper representative does not proceed with- 
in six years alter abatement of a suit, pro- 
[*273] vided *there has been no decree(5), for a de- 
cree being in the nature of a judgment the 
statute of limitations cannot be applied to it(<). 
But where the consequence of reviving proceedings 
to carry a decree into execution would have been 
to call on representatives to account for assets 
after a great length of time, and under peculiar 
circumstances of laches, a bill of revivor and sup- 
plement for those purposes was dismissed(if). Al- 
though suits in equity are not within the words of 
the statute, the courts of equity generally adopt it 
as a positive rule, and apply it by parity of reason 
to cases not within it(^'). In general they also 

{q) Gardiner v. Griffith, 2 P. Ball & B, 531. 

Wnis. 404. 3 Atk. 459. noieler v. (t) 1 P. Wms. 744. 2 Sch. & Lefr. 

Alhngton, 3 Atk. 453. And sec 633. 

3'Iultcr V. Chanvell, 1 Meriv. 475. (w) Hercy v. Dinuoody, 4 Bro. C. 

(r) 2 P. Wins. 405. C. 257. 

(s) Hollingshcad's case, 1 P. (x) Lord Mansf. 2 Burr. 9fil. 2 

Wms. 742. Comber's case, 1 P. Atk. Gil. 3 Bro. C. C. 340, note. 1 

Wins. 766. 2 Sch. & Lefr. 633. 1 Sch. & Lefr. 428(1). 

(1) The principles of the statutes of limitation, as applied to suits in 
equity, are rccogaisod by the Revised Statutes of the State of New- 
York. Before such express recognition, they received the same 
construction and application. Kane v. BhndgoocI, 7 J. C. R. 00 ; 
Slajord V. Bryan, 1 Pa'ge's C. R. 230 ; Berime v. Vuriun, 1 Ed- 
wards' V. C. Reporii, 343; Bogardus v. Trinihj Church, MS. (N. Y. 
Chancery.) Now, it is expressly enacted that bills of relief from 



PLEAS. 335 

hold that unless the defendant claims the benefit 
of the statute by plea or answer he cannot insist 

fraud are to be brought within six years from the discovery. All 
other bills for relief, of which law has not cognizance, within ten years 
after the cause has accrued. There is a sweeping exception of cases 
connected with disability ; and the provisions are qualified so as not to 
extend to suits over the subject-matter of which a court of equity has 
peculiar and exclusive jurisdiction, and which is not cognizable at law. 
2 R. S.301 ; and see the case of Fan Hook v. Wkillock, 3 Paige's C. 
R. 409. 

In Kentucky, the construction of the statute of limitations to per- 
sonal actions in England is not recognised. Pallerson v. Brovn, 6 
J\lonroe's R. 10 ; but see the three next cases. The statute of limita- 
tions is a bar in equity. M-Doicell v. Heath's executors, 3 A. K. 
^/a/-i7ia//"s (Kentucky) i2. 223 ; Breckenridge v. Churchill, 3 J. J. 
J^larshalV s R. 15. It does not apply loLidem verbis in equit}', but has 
been adopted as reasonable and consistent. Crain v. Pralhcr, 4 lb. 
77. This statute operates as a bar to a suit in equity by its own force 
and not by the discretion or courtesy of the court. Farnam y. Brooks, 
8 Pickering's (Massachusetts) R. 2l2. It does not apply to direct 
trusts, but constructive trusts resulting from partnerships, agencies and 
the like. Actual fraud discovered or which the complainant bad means 
of discovering more than six years before the commencement of the 
suit, will not take the case out of the statute. lb. The statute of 
limitations receives the same construction, in analogous cases, in equity 
as at law. Lindsay v. Bell, Finiay's (Irish) Index, 368. And it is a 
good plea in bar, in equity, as well as at law. lb. When a delay has 
been such as to be a bar at law, it will be so in equitj-. Bunks v. Jti- 
dah, 8 Day's (Connecticut) R. 145 ; and see MLnrcn v. Pennington, 
1 Paige's C. R. 100. Same principle in the United States courts. 
Elmendorfx. Taylor, 10 Wheat. 152 ; Miller v. Jl-Inlyre, 6 Peters, 
61. If equity were to adopt as a general rule, that no lapse of time 
would preclude its interference, it would introduce a principle that 
must work infinite mischief to the peace and safety of families. Strut' 
ford V. L')rd Aldborough, 1 Beatty's (Irish) R. 23G. Yet see Ellis v. 
Deane, 1 lb. 21. A bill filed by one creditor on behalf of himself and 
the others,' will prevent the statute of limitations from running against 
any of the creditors who come in under the decree. Sleradale v. 
Hajikinson, I Sim. 3G3. 

The statute of limitations, notwithstanding it is a defence at law, 
may be pleaded to a bill of discovery in aid of an action brought, pro- 



336 PLEAS. 

upon it in bar of the plaintiff's demancl(i/) ; but 
notwithstanding, tlie courts will in cases which 
will allow of tiie exercise of discretion use the sta- 
tute as a rule to guide that discretion(2;) ; and will 

also sometimes resort to the policy of the 
[*274] ancient *law, which in many cases limited 

the demand of accruing profits to the com- 
mencement of the suit(«). 

Any other public statute which may be a bar to 
the demands of the plaintiff may be pleaded, with 
the averments necessary to bring the case of the 
defendant within the statute, and to avoid any 
equity which may be set up against the bar cre- 
ated by the statute(6). 

(y) 1 Atk. 494(1). & Lefr. 428. 2 Sch. & Lcfr. 632. 10 

(z) 1 Atk. 494. Courts of Equity, Ves. 466. 1.5 Ves. 496. 17 Ves. 97. 

it seems, in respect of legal titles and 1 Ball & B. 119. 166. 2 Jac. 6l W, 

demands, are hound by the statute, 2 163, and following pages, particularly 

Sch. & Lefr. 630, 631 ; and 6>;eHo>ii/ p. 175, and 2 Jac. & \V. 192. 

▼. Hony, 1 Sim. & Stu. 568; but, in (a) On this subject see PuUeney 

respect of equitable titles and de- v. Warren, 6 Ves. 73. Pettiward v. 

mands, are only influenced in their Prcscott, 7 Ves. 541. 

determination by analogy to it. 1 Sch. {b) See instances of a plea of the 

vided it has been pleaded to the declaralion. If the action was com- 
menced before the bill was filed, the plea must aver that the cause of 
action did not accrue within six years before the action was brought. 
Macgregor v. The E. I. Company, 2 Sim. 452. It is a settled princi- 
ple that equity follow the law ; and acting in obedience to the statute 
of limitations, the plea thereof is as available in equity as at law, in 
relation to the same subject-matter. Wulkins v. Haricood, 2 Gill Sp 
Johns. 307; Carroll v. Waring, 3 lb. 491. Tiie statute of limitations 
may be interposed against legacies, if not charged upon the land, as 
well in equity as at law. Souzer v. De JJeijer, 2 Paige's C. R. 574. 

If a sufEcieot lapse of time to create a bar appears upon the bill, 
there is no occasion to support such a plea with an answer. Carroll 
V. Waring, 3 Gill Sf Johns. (Maryland) R. 491. The statute of limi- 
tations may be a bar to a suit in equity by one partner against another 
for an account and settlement of the joint concern. Alwater v. 
Fowler, I Edwards' V. C. iJ. 417. 

(1) Dey V. Dunham, 2 J. C. R. \9l ; 3 J. J. Marshall's R. 186. 



PLEAS. 337 

A particular statute may also be pleaded in the 
same manner. Thus, to a bill impeaching a sale 
of lands in the fens by the conservators under the 
statutes for draining the fens, the defendant plead- 
ed the statutes, and that the sale was made by vir- 
tue of and according to those statutes, and the plea 
was allowed(c). 

X. Supposing a plaintiff to have a full title to 
the relief he prays, and the defendant can set up no 
defence in bar of that title, yet if the defendant has 
an equal claim to the protection of a court of equi- 
ty to defend his possession, as the plaintiff has to 
the assistance of the court to assert his right, the 
court will not interpose on either side(<Z). 

statute of maintenance, 32 Hen. VIII., 249. 

c. 9, s. 3, Hitchinsx. Lander, Coop. {d) (3) See 2 Ves. Jr. 457, 458, 

R. 34 ;(I) Wall v. Stubbs, 2 Ves. & and the authorities there referred to j 

Bea. 354 ; and another example of and see the case of Gait v. Osbaldes- 

the proposition in the text, Ockle- ton, 5 Madd. 438. S. C. 1 Russ. R. 

stone v. Benson, 2 Sim- &■ Stu. 265; 158. One exception has however 

and see De Taatet v. Sharps, 3 been made in favor of a dowress, 

Madd. 51(2). see Williams v. Lambe, 3 Bro. C. 

(c) Brown v. Hamond, 2 Ch. Ca. C 264. 

(1) See the form of the plea used in this case. Beames on Pleas, 
333. 

(2) And as to a plea of usury, see Beach y. Fulton Bank, on appeal, 
3 Wendell's R. 573 ; 1 /J. S. 771. 

As to a discharge under an insolvent act, Salters v. Tobias, 3 Paige's 
C R. 338. In this case, it is decided, that a plea of discharge under 
the insolveut act must distinctly state every fact which was necessary 
to give the discharging oflBcer jurisdiction in the first instance. An ap- 
peal from the decision in this case is now pending. 

(3) A defendant cannot, in a plea, pass over the title of the com- 
plainant and make his own title inconsistent with and subject to the one 
which is set up by the complainant. It is incumbent upon the defend- 
ant in some way or other to connect his own with the complainant's 
title, or to traverse the grounds of that title or some substantial part of 
it and to deny the existence of the deed under which the latter claims ; 
or, if he do not do so, to deny at least that the deed is in his possession 
and that he has no knowledge of its contents. Per Ch. Walworth, MS. 

43 



338 



PLEASI. 



[*275] This is particularly *the case where the 
defendant claims under a purchase or mort- 
gage for valuable consideration without notice of 
the plaintiff's title which he may plead in bar of 
the suit(e)(l). Such a plea must aver that the per- 
son who conveyed or mortgaged to the defendant 
was seised in fee, or pretended to be seised(/), 
and was in possession(^), if the conveyance pur- 
ported an immediate transfer of the possession at 
the time when he executed the purchase or mort- 
gage-deed(/t). It must aver a conveyance, and 
not articles merely(2) ; for if there are articles only, 
and the defendant is injured, he may sue at law 
upon the covenants in the articles(A:). It must 
aver the consideration(/) and actual payment of 
it ; a consideration secured to be paid is not suffi- 
cient(m). The plea must also deny notice(w) 
of the plaintiff's title or claim(o), previous to 

(e) Fitzgerald v. Burk, 2 Atk. bridge, Fitzg. 207. 1 Atk. 571. 3 
397. Story V. Lord Windsor, 2 Atk. Atk. 377. 

630. Bullock V. Sadlier, Ambl. 763. (A;) 1 Atk. 571. 

Strode v. Blackburne, 3 Ves. 222. (Z) 1 Ca. in Cha. 34. Millard's 

Wallwyn \. Lee, 9 Ves. 24. 1 Ball c3iSe,2FTeem A3. Brerctonv. Gamvl, 

& B. 171. 2 Ball & B. 303(2). 2 Atk. 240. 

(f) 3P.Wms.281. Story V. Lord {m) Hardin gharn v. NicholU, 3 
Windsor, 2 Atk. 630. 17 Ves. 250. Atk. 304. Maitland v. Wilson, 3 

(g-) Trevanian v. Masse, 1 Vern. Atk. 814. 

246. 3 Ves. 226. 9 Ves. 32. 16 Ves. (n) On the subject of notice, actual 

252 and constructive, see Sugden's Vend. 

(K) (3) 3 P Wms. 281. As to ^ Purch. 6th cd. 710. 

the case where the purchase is of a (o) Lady Bomin v. Vande- 

reversion, see Hughes v. Garth, bendy, 1 Vern. 179. Jones v. Tho- 

Ambl. 421. S. C. 2 Eden R. 168. mas, 3 P. Wms. 243. Kelsall v. Ben- 

(i) Fitzgerald v. Lord Falcon- net, 1 Atk. 522. 



(1) See the form of such a plea, TVillis, 566. 

(2) Jewett V. Palmer, 7 J. C. R. 65 ; Gallatian v. Cunningham, 8 
Covoen's R. 361. And see 2 Revised Statutes JV. Y. 174, } 43, ai to 
how a purchaser is to be charged with notice of Ihe filing of a bill re- 
lating to real estate. 

(3) And see Jackson v. Rovoe, 4 Rust. 514. 



PLEAS. 



339 



"^the execution of the deeds and payment of [*276] 
the consideration(p) ; and the notice so de- 
nied must be notice of the existence of the plain- 
tiff's title, and not merely notice of the existence 
of a person who could claim under that title(^). 
If particular instances of notice, or circumstances 
of fraud are charged, they must be denied as spe- 
cially and particularly as charged in the bill(r). 
The special and particular denial of notice or fraud 
must be by way of answer, that the plaintiff may 
be at liberty to except to its sufficiency(5) ; but 
notice and fraud must also be denied generally by 
way of averment in the plea, otherwise the 
fact of notice or of fraud will not be *in [*277] 
!ssue(<). Notice or fraud thus put in issue, if 



(p) More V. Mayhow, 1 Ca. in 
Cha. 34. S. C. 2 Freem. 175. 1 Eq. 
'Ca. Ab. 38. 334. TourviUe v. Naish, 
3 P. Wms. 307. 1 Atk. 384. 2 Atk. 
631.3 Atk. 304. 

{q) 1 Atk. 522. And it must not 
appear that the defendant, though he 
ahould claim as purchaser under a 
settlement executed at the time of his 
marriage, might have had notice of 
the plaintiff's title by using due dili- 
gence in the investigation of his own. 
Jackson v. Rowe, 2 Sim. & Stu. 472 ; 
and see Hamilton v. Royse, 2 Sch. & 
Lefr. 315. 13 Ves. 120. 14 Ves. 433. 
6 Dow. P. C. 223, 224. 6 Madd. 59. 

(r) Radford v. Wilson, 3 Atk. 
S15. 2 Ves. 450. Jarrard v. Saun- 
■der, 2 Ves. Jr. 187. S. C. 4 Bro. C. 
C. 322. 

(*) Anon. 2 Ca. in Cha. 161. 
Price V. Price, I Vern. 125. 6 Ves. 
596. 14 Ves. 66. It has been lately 
declared, that it is not the office of the 
plea to deny particular facts of no- 
tice ; but tliat it is sufficient, where 
such facts are alleged, to make a 
general denial which will include 
constructive as well as actual notice ; 
yet that if circumstances be specially 
charged as evidence of notice, they 
must be denied by averments in the 
p'ea. and by an answer accompany- 



ing the same. Pennington v. Bee- 
chy, 2 Sim. &. Stu. 282. 

(i) Harris v. Ingledew, 3 P. 
Wms. 94; 3 P. Wms. 244, note, 
Gilb. For. Rom. 58. Treat, of 
Fraud.s, c. 18, p. 220. In the case of 
Meadows v. Duchess of Kingston, 
Mich. 1777, (S. C. reported Ambl. 
756,) the chancellor seemed to be of 
opinion, that notice and fraud were 
to be denied by way of averment in 
the plea, in cases only where the de- 
nial made part of an equitable de- 
fence ; as in a plea of purchase for 
valuable consideration, the denial of 
notice must be by way of averment 
in the plea, because the want of no- 
tice creates the equitable bar. But 
in Devie and Chester, in Chan. 
March 10th, 1780, a decree establish- 
ing a modus having been pleaded to a 
bill for tithes, in which the plaintiff 
stated that the defendants set up the 
decree as a bar to his claim, and to 
avoid the effect of the decree charged 
that it had been obtained by collu- 
sion, and stated facts tending to 
show collusion ; the chancellor was 
of opinion, that the defendants not 
having by averments in the plea de- 
nied the collusion, although they had 
done so by answer in support of the 
plea, the plea was bad in form, and 



340 PLEAS. 

proved, will effectually open the plea on the hear- 
ing of the cause(l). 

he overruled it accordingly. And in schedule annexed to the bill, that 
Hoare and Parker, in Ch. 17th and Mrs. Stewart had pledged divers ar- 
19th of Jan. 1785, (reported 1 Bro. tides of plate at several times stated 
C. C. 578. S. C. 1 Cox R. 224,) in the plea, for sums of money speci- 
the plaintiffs having brought their fied in the plea, which sums the de- 
bill as trustees, claiming quantities of fendant averred were paid to Mrs. 
plate described in a schedule annexed Stewart ; and he also averred that 
to the bill, of which the use had been he had no notice of the will of Ad- 
given by the will of Admiral Stewart miral Stewart till after the death of 
to his widow for her Ufe, and after Mrs. Stewart ; but he did not aver by 
her death to his son and his issue ; his plea that he had no plate pawned 
against the defendant, a pawnbroker, with him by Mrs. Stewart besides 
with whom the plate, or part of it, the pieces pawned at the particular 
was alleged to have been pledged by times mentioned in the plea, although 
the widow ; and the bill having he did by his answer deny that he 
sought a discovery of the particular had any other. The chancellor was 
pieces of plate pawned, in order to of opinion that the plea was there- 
found an action of trover, the defend- fore defective in point of form, as it 
ant pleaded to so much of the bill as extended to all the plate mentioned in 
sought a discovery of the plate pawn- the schedule of which a discovery 
ed, as after mentioned in the plea, was sought by the bill. See 6 Ves, 
and of the plate specified in the 595. 597 ; and see p. 239, et seq. 



(1) Souzer v. De Meyer, 2 Paige's C. R- 574. Lord Chancellor 
Lifford, (in Lord Drogheda v. Malone, Finlay's Digest, 449,) has thus 
illustrated a plea of valuable consideration ; " With respect to pur- 
" chasers for valuable consideration, the early cases were crude and not 
*' sufficiently guarded, but it is now established, that such a purchaser, 
•' without notice, shall protect himself from relief and discovery by this 
" sort of plea : and upon this principle, that all men who stand on 
" equal ground shall have equal equity, because the court cannot do 
" any thing for one, without injuring the other. No title can be better 
" than the title of such a purchaser ; particularly where the considera- 
" tion is marriage. If he has a legal title, the court cannot interpose. 
" Several circumstances are now required to substantiate this sort of 
" plea, which, at first, were not attended to. I. That the parly with 
" whom such purchaser has dealt, should be seized or pretended to be 
" seized in fee, and this must be averred. 1 Vern. 246. II. That he is 
" the visible and reputed owner. III. That the purchaser shall purchase 
" for valuable consideration. There are two sorts of valuable conside- 
•« ration : 1. Money; 2. Marriage. With respect to money — it ought 
*' to be paid at the time. With respect to marriage — it is certainly a 
" valuable consideration, and the moment the marriage is celebrated, 
" the consideration is paid. IV. That there shall be no notice express 
" or implied of any fraud committed by the person with whom the pur- 
" chaser deals. He must show he has been diligent, and then he will 



PLEAS. 341 

* A purchaser with notice, of a purchaser [*278] 
without notice, may shelter himself under 
the first purchaser(<). But notice to an agent is 
notice to the principal(z*) ; and where a person 
having notice, purchased in the name of another 
who had no notice, and knew nothing of the pur- 
chase, but afterwards approved it, and without no- 
tice paid the purchase-money, and procured a 
conveyance, the person first contracting was con- 
sidered from the beginning as the agent of the 
actual purchaser, who was therefore held affected 
with notice(aj). A settlement in consideration of 
marriage is equivalent to a purchase for a valu- 
able consideration(?/), and may be pleaded 
in the *same manner(2;). If a settlement [*279] 
is made after marriage in pursuance of an 
agreement before marriage, the agreement as 

{t) Brandlyn v. Ord, 1 Atk. 571 j Madd. 34. 

Lowther v. Carlton, 2 AX^. 139; S. (ar) Jennings v. Moore, 2 Vcrn. 

C. 2Atk. 242; Ca. 1. Talb. 187; 2 G09. S. C. on appeal, under title 

Eq. Ca. Ab. G83 ; Sweet v. South- Blenkarne v. Jennens, 2 Bro. C. C. 

cote, 2 Bro. C. C. 66 ; Ambl. 313 ; 278. Toml. ed. Coote v. Mammon, 5 

11 Ves. 478 ; 13 Ves. 120 ; and see Bro. P. C. 355. Toml. ed. 

Harrison v. Forth, Pre. in Cha. 51. (y) 1 Atk. 190. 6 Ves. 659. 18 Ves, 

(«) Brotherton v. Hatt, 2 Vern. 92. 6 Dow P. C. 209. 2 Sim. & Stu. 

574 ; Le Neve v. Le Neve, 3 Atk. 475. 

646; 1 Ves. 62; 2 Ves. 62. 370 ; 13 [z) Harding v. Hardrctt, Finch. 

Ves. 120; Mountford v. Scott, 3 R. 9. 

" appear innocent and may protect himself. The great end of equity 
" and all institutions of justice is to make property safe and to render 
" it secure. If a purchaser has notice, he throws away his money wil- 
" fully. 1 Atk. He acts contrary to good conscience, for he ought 
" not to interfere with any man's right : these circumstances should all 
"concur. As to pleas in general : 1. A plea must be such as not to 
" cover too much, and this sort of plea particularly should not cover 
" more than the purchase for valuable consideration covers. With 
" respect to all such overplus it is bad : it cannot cover any fraud m the 
" purchaser himself, .fcc, &c." 



342 PLEAS. 

well as the settlement must be shown(2). A 
widow, defendant to a suit brought by any per- 
son claiming under her husband, to discover 
her title to lands of which she is in possession 
as her jointure, may plead her settlement in 
bar to any discovery, unless the plaintiff offers, and 
is able, to confirm her jointure. But a plea of this 
nature must set forth the settlement, and the lands 
comprised in it, with sufficient certainty(a). A 
plea of purchase for a valuable consideration pro- 
tects a defendant from giving any answer to a title 
set up by the plaintiff, but a plea of bare title only, 
without setting forth any consideration, is not suf- 
ficient for that purpose(6). Upon a plea of pur- 
chase for a valuable consideration to a discovery 
of deeds and writings, the purchase-deed must be 
excepted, for it is pleaded(c). 

A plea of purchase for a valuable consideration, 
without notice of the plaintiff's title to a bill to 
perpetuate the testimony of witnesses, has been 
allowed, though there are few cases in which the 
court will not give that assistance to the further- 
ance of justice. Thus, to a bill to perpe- 
[*280] tuate the testimony of witnesses *to a will 
the defendant pleaded purchase for a valu- 
able consideration, without notice of the will, and 
the plea was allowed(</). But in this case, as re- 
ported, there appears to have been nothing to im- 
pede the plaintiff's proceeding at law to assert his 



(z) Lord Keeper v. Wyld, 1 Vern. 274, note (d). 1 Ves. Jr. 76. 

139. (b) 2 Atk. 241. 

(a) Pctre v. Petre, 3 Atk. 511 ; 3 (c) 2 Ves. 107. 

Atk. 571 ; 2 Ve.?. 450 ; Leech v. (d) Bechinall v. Arnold, 1 Vern. 

Trollop, 2 Ves. 662. As to the case 354. 
of a dowress plaintiff, see above p. 



PLEAS. 



343 



title under the will, against the defendant's posses- 
sion, and there was apparently therefore no equity 
to support the bill(<Z). 

XI. Though a plaintiff may be fully entitled to 
the relief he prays, and the defendant may have no 
claim to the protection of the court which ought 
to prevent its interference, yet the defendant may 
object to the bill if it is deficient to answer the 
purposes of complete justice. This is usually 
for want of proper parties ; and if the defect is not 
apparent on the face of the bill(c) the defendant 
may plead the matter necessary to show it{f). 
A plea of want of parties goes both to discovery 
and relief where relief is prayed(^), though the 
want of parties is no objection to a bill for a disco- 
very merely(/0. Where a sufficient reason to ex- 
cuse the defect is suggested by the bill, as where 
a personal representative is a necessary party, 
and the bill states that the representation 
is in contest *in the ecclesiastical court(f), [*281] 
or where the party is resident out of the 
jurisdiction of the court(fe), and the bill charges 

(d) See also Ross v. Close, 5 Bro. Ves. 325(2). 

P. C. 362. Toml. ed ; 2 Ves. Jr. 458. (h) Sangosa v. E. I. Camp. 2 Eq. 

(e) 16 Ves. 325. Ca. Ab. 170. 

(/) Hanne v. Stevens, 1 Vern. (i) See 2 Atk. 51, in Plunket v. 

110; Ashurst v. Eyre, 2 Atk. 51 ; S. Pcnson. 

C. 3 Atk. 341(1). (/c) Cowslad v. Cely, Prec. in Clia. 

{g) 2 Atk. 51, in Plunket v. Pen- 83, and see Haddock v. Thomlinson, 

son, wherein this plea is termed a 2 Sim. &Stu. 219, and above, p. 164, 

plea in bar; but see 6 Ves. 595 ; 16 note. 



(1) Milchell V. Lenox, 2 Paige's C. R. 280 ; JPKinley v. Combe, 
1 J^lon. 107,- Westv. Saunders, 1 Marsh. 110. See the form of a plea 
for want of parties, Willis, 571, and see note there; Edwards on 
Parties, 292. 

(2) A plea for want of parties must be to the entire bill. Parke r. 
Black, 1 Hogan, 70 ; and see the cases, which appeared to make the 
practice doubtful, there reviewed. 



344 



PLEAS. 



that fact, or where a bill seeks a discovery of the 
necessary parties(/), an objection for want of par- 
ties will not be allowed, unless, perhaps, the de- 
fendant should controvert the excuse made by the 
bill by pleading matter to show it false(l). Thus, 
in the first instance, if before the filing of the bill 
the contest in the ecclesiastical court was deter- 
mined, and administration granted, and the de- 
fendant showed this by plea, perhaps the objection 
for want of parties would be in strictness good. 
Upon arguing a plea of this kind, the court in- 
stead of allowing it has given the plaintiff leave to 
amend the bill upon payment of costs(m)(2) ; a li- 
berty which he may also obtain after allowance of 
a plea, according to the common course of the 
court ; for the suit is not determined by allowance 
of a plea as it is by allowance of a demurrer to the 
whole of a bill(w). 

Having thus considered all the objections to a 

bill which have occured, as extending to relief, 

and which likewise extend to discovery 

[*282] wherever it is ^merely sought for the pur- 

(l) See Bowyerv. Covert,! Vern, necessary, and naming them, leave 

95. was given to amend the plea. Merre- 

(m) Stafford v. City of London, icether v. Mellish, 13 Ves. 435. See 

1 P. Wms. 428 ; and where the plea 11 Ves. 369. 16 Ves. 325(3). 

was defective in point of form, in not (n) See below, p. 304. 
stating that additional parties were 



(1) Milligan v. MilleJge, 3 Crunch, 220. 

(2) Cook V. Mancius, 3 J. C. R. 427. 

(3) It seems, that leave will not be given to amend a plea, unless 
the court is satisfied the defect, which the amendment is intended to 
remedy, arose from an accidental slip. And even in such a case an 
affidavit will be required, provided the opposite party require it. Jack- 
son V. Rotce, 4 Russ. 514. 



PLEAS. 345 

pose of obtaining relief, and can have no other 
end, it remains to treat of such objections as are 
grounds of plea to discovery only. These are 
nearly the same as those which have been already 
mentioned as causes of demurrer to discovery. 
They may be : I. That the plaintiff's case is not 
such as entitles a court of equity to assume a juris- 
diction to compel a discovery in his favor : II. That 
the plaintilf has no interest in the subject, or no 
interest which entitles him to call on the defend- 
ant for a discovery : III. That the defendant has 
no interest in the subject to entitle the plaintiff to 
institute a suit against him even for the purpose of 
discovery only : IV. That the situation of the de- 
fendant renders it improper for a court of equity to 
compel a discovery. 

I. If the plaintiff's case is not such as entitles a 
court of equity to assume a jurisdiction to compel 
a discovery in his favor, though he falsely states a 
different case by his bill, so that it is not liable to 
a demurrer, the defendant may by plea state the 
matter necessary to show the truth to the 
court (/«)(!). 

II. If a plaintif!' by his bill states himself to 

(n) But if a plainfiiT wlio is hank- payment of the lialanno to him, it 

ru|)t, ill a liill liloii by him to obtain would overnilo a plea of that fact ?o 

discovery in aid of his dcfeiicc to an fur as to give him the discovery, and 

action, and for an account, and an in- even to have the accounts taken, 

junction in the mean time, should Loicndcs v. Taylor, I Madd. R. 423. 

avoid stating his bankruptcy, al- S. C. 2 Rose, 305. See above, p. 67, 

though this court, it seems, would not note, 
afi'ord him reUcf by decreeing the 



(1) For (he form of a plea to the jurisdiction, where a discovery 
is soug-ht iu aid of another court of competent jurisdiction, see Willis, 
574. 

44 



346 



PLEAS. 



[*283] have *an interest which entitles him to 
call on the defendant for a discovery, 
though in truth he has no such interest, the de- 
fendant may hy plea protect himself from making 
the discovery, which may involve him in difliculty 
and expense, and perhaps may be prejudicial to 
him in other cases(l). Thus, if a plaintift* states 
himself to be heir or administrator of a person 
dead intestate, and in that character seeks a dis- 
covery from a person in possession of property 
which did belong to the deceased, of his title 
thereto, or of the particulars of which it consists, 
the defendant may plead that ajiother person is 
heir or personal representative, or that the person 
alleged to be dead isliving(o)(2). 

III. It has been already observed, that if a claim 
of interest is alleged by a bill against a person who 
has no interest in the subject, he cannot by de- 
murrer protect himself from a discovery, and must 

(o) Orcil aoaiiist Williamson, Trin; 510. And see Gait v. Oshaldeston, 1 
1773; Orel \. Huddlcstone, Dick. Russ. 158 ; S. C. 5 Madd. 428. 



(1) Mendizabel V. Machado, 1 Sim. G8. But, to a bill by several 
tenants in common of an estate witliin the Island of Jamaica against 
their co-tenant, for an account of the profits, &c. — it was held as not 
sufficient for the defendant to plead that the title to the estate might be 
brought in question and suggesting that he had an exclusive title to the 
whole and ought not, therefore, to be sued in chancery. He ought to 
have set forth his title affirmatively, that the court might have deter- 
mined whether the suit ought to have been stayed until the title was 
established. Livingston v. Livingston, 3 J. C. It. 51. 

2) If a party having an interest, joins, as a co-plaintiff, a party 
having no interest, a plea will be a good defence to the suit, if the fact 
docs not appear on the face of the bill (and if it does appear, a dem<ir- 
rur will hold). Makepeace v. Haylhorne, 4 Russ. 244. 



PLEAS. 



547 



resort either to a plea or disclaimer(2?)(l); by ei- 
ther of which means it should seem he may pro- 
tect himself from making by answer that discovery 
which he may properly be required to make if call- 
ed upon as a witness((/). In some cases however 
the court has allowed a defendant to protect himself 
by answer, denying the charge of interest, from an- 
swering to matters to which he may be 
afterwards called upon to answer in *the [*284] 
character of a witness; and perhaps, in 
justice to those against whom he may afterwards 
be called upon to give evidence as a witness, he 
ought not to be previously examined to the same 
matters upon a bill, under the pretence of an in- 
terest which he has not. 

IV. The situation of a defendant may render it 
improper for a court of equity to compel a disco- 
very, 1, because the discovery may subject him to 
pains and penalties; 2, because it will subject him 
to a forfeiture, or something in the nature of a 
forfeiture ; 3, because it would betray the confi- 
dence reposed in him as a counsel, attorney, or ar- 
bitrator ; 4, because he is a purchaser for a valua- 
ble consideration without notice of the plaintifi''s 
title. 

1. It has been already observed, that no person 

(p) Page 188. And sec 1 Vcs. settled that a bankrupt could by plea 
42(3. protect himself from discovery. Sec 1 

(5) But it does not appear to be Ves. & B. 550(2). 



(1) By the practice of the State of New-York, a party who disclaims 
in a mortgJige case will have to pay costs. Rule 133. 

("2) A bankrupt, at at)y rate, cannot set up, b^' plea, a commission 
which has issued after the filings of the bill. Macwnrlk v. Marshall, 3 
Sim. 368 ; and see Willis on Eq. Plead. 20G, and note («) there. 



348 PLEAS. 

is bound to answer so as to subject himself to pu- 
nishment, in whatever manner that punishment 
arises, or whatever is the nature of the punishment 
(r). If therefore a bill requires an answer which 
may subject the defendant to any pains and penal- 
ties, or tends to accuse him of any crime, and this 
is not so apparent upon the face of the bill that 
the defendant can demur, he may by plea set forth 
by what means he may be liable to punishment, 
and insist he is not bound to answer the bill, or so 
much thereof as the plea will cover(6r)(l). 

Thus to a bill brought for discovery of 
[*285] a marriage, *where the fact, if true, would 
have subjected the party to punishment in 
the ecclesiastical court for incest, the defendant 
pleaded matter to show that the marriage, if real, 
was incestuous, and would subject the parties to 
pains and penalties(/). And where a bill was 
brought against a woman claiming as widow of a 
person dead, alleging that before her marriage 
with the deceased she was married to another per- 
son, who was living at the time of her marriage 
with the deceased, the defendant pleaded that mar- 
riage to the discovery of the supposed first mar- 
riage, and insisted that she w as not compellable to 

(r) Page 191. See 2 Ves. 245 ; 2 109 ; Claridge v. Hoare, 14 Ves. 59. 

Swanst. "214. 216; Bird v. Hard- (t) BrownsicoTd v. Edwards, 2 

loicke, 1 Vern. 109 ; 11 Ves. 525. Ves. 243 ; 14 Ves. 05. 

(«) Bird V. Hardwicke, 1 Vern. 

(1) But if, between the filing and the hearing' of the plea, the lime 
for suing for the penalties expires, the plea will be overruled. Corpo- 
ration of Trinity Church v. Surge, 2 Sim. 411. See the form of a 
plea that the discover}' will subject the defendant to pains and penal- 
ties, Willis, 577 ; also the form of the plea used in Claridge v. Hoare, 
supra. 



PLEAS. 349 

answer to the fact of the first marriage, as it would 
tend to show her guilty of biganiy(M). So to a 
bill for a discovery whether the defendant had 
become a purchaser of an estate of which the sup- 
posed seller was not in possession, the defendant 
pleaded the statute against selling or contracting 
for any pretended rights or titles(a:). And to a bill 
brought by insurers for a discovery of what goods 
had been shipped on board a vessel, the defendant 
pleaded the statutes which made it penal to export 
wool. He was, however, directed to answer so 
far as to discover what goods were on board the 
vessel besides wool(?/). But where the discovery 
sought was not of a fact which could subject the 
defendant to any penalty, though connected with 
another fact which might, as, where the question 
was whether the defendant had a legiti- 
mate son, *the defendant was compelled [*286] 
to answer. For the discovery of that fact 
would not subject him to a penalty, though the 
discovery of his marriage with the mother of the 
son might, and therefore he was not compelled to 
discover the marriage(2;). 

2. It has been also(«;) observed, that no person 
is bound to answer so as to subject himself to any 
forfeiture, or to any tiling in the nature of a for- 
feiture(&). If this is not apparent on the bill the 
defence must be made by way of plea. Thus where 
a bill was brought to discover whether the defend- 
ant had assigned a lease, he pleaded to the disco- 

(m) 5 Bro. P. C. 102 ; Toml. cd. (z) Finch v. Finch, 2 Vcri. 191. 

(.1-) iiharp V. Carter, 3 P. Wms. (a) Pagi- 11)7. 
375. (6) 1 Atk. 5-27. And see Park- 

(y) Duncalfv, Elake, 1 Atk. 52. hurst v. Louten, 1 Meriv. 3yi. 



350 PLEAS. 

very a proviso in the lease, making it void in case 
of assigninent(c). And to a bill seeking a disco- 
ver}' whether a person under whom the defendant 
claimed was a papist, the defendant pleaded his 
title, and the statute of 11 &. 12 William III. dis- 
abling papists(^Z). But such a plea will only bar 
the discovery of the fact which w.ould occasion a 
forfeiture. Therefore, where a tenant for life 
pleaded to a bill for discovery wiiether he was 
tenant for life or not, that he had made a lease for 
the life of another, which, if he was tenant for his 
own life only, might occasion a forfeiture, the plea 

was overruled(c). So upon a bill charging 
[*287] the defendant *to be tenant for life, and 

that he had committed waste, it was de- 
termined that he might plead to the discovery 
of the act which would occasion the forfeiture, the 
waste, but that he could not plead to the discovery 
whether he was tenant for life or not(y). Upon 
an information by the attorney general on behalf 
of the crown, to discover whether the defendant 
was an alien, and whether her child was an alien, 
and where born, it w^as held the defendant was 
bound to discover whether she was herself an alien, 
the legal disability of an alien not being a penalty 
or forfeiture ; and that she was also bound to dis- 
cover whether her child was an alien, and where 
born, as she had a chattel interest in the property 
in question in trust, eventually, for the crown, if her 

(c) Fane v. Atlec, 1 Eq. Ca. Ab. v. Southcote, 528 ; S. C. 2 Ves. 389. 
77. (e) Weaver v. Earl of Mealh, 2 

(d) Smith V. Head, 1 Atk. 52fi ; Vcs. 108. 

3 Alk. 457 ; Jones v. Meredith, Com. (/) 2 Ves. 109. 
R. 6G1; S. C. Bunl). 34G; Harrison 



PLEAS. 



351 



child was an alien(«-). In all cases of forfeiture if 
the plaintiff is entitled alone to the benefit of the 
forfeiture(//), and waves it by his bill, the defend- 
ant will be compelled to make the discovery re- 
quired. And though the plaintiff is not entitled 
to the benefit of the forfeiture, yet if the defendant 
has by his own agreement boundhimself not to in- 
sist on being protected from making the discovery, 
the court will compel him to make it(i). In some 
cases the legislature has expressly provided 
that the parties to transactions made *ille- [*288] 
gal by statute shall be compellable to an- 
swer bills in equity for discovery of such transac- 
tions ; and in such cases a defendant cannot pro- 
tect himself from making the discovery thus re- 
quired by pleading the statute which may subject 
him to penalties in consequence of the discovery 

3. If a bill seeks a discovery of a fact from one 
whose knowledge of the fact was derived from the 
confidence reposed in him as counsel, attorney, or 
arbitrator, he may plead in bar of the discovery 
that his knowledge of the fact was so obtained(/). 

4. If a defendant is a purchaser for a valuable 
consideration without notice of the plaintiff*'s title, 
a court of equity will not in general compel him to 

(g) Alt. Gen. v. Duplcssts, Par- nUUng v. Flight, 1 jNIadd. R. 230. 
ker, 114; S. C. 1 Bro. P. C. 415; (/) BuUtrode v. Lcchmore, 1 Ca. 

Daitbigny v. Davallon, Anstr. 1G2. in Cha. 277; S. C. 2 Ficem. 5; and 

(/(.) South Sea Comp. v. Bump- sec Lcgard v. Foot, Finch II. 82; 

stead, Mosely, 75 ; S. 0. 1 Eq. Ca. Sam/ford v. Remington, 2 Ves. Jr. 

Ab. 77. IS!) ; Wright v. Mayer, 6 Vcs. 280 ; 

(t) MoscIy, 77, and the cayps there Richards v. Jackson, 18 Vos. 472 ; 

cited. African Comp. v. Parish, 2 I Sch. SLLvCr.'Iii]; Lowlcti v. Parlc- 

Vern. 244. hurst, 2 Swanst. 11)4, and Harvey v. 

(/c) Bancroft v. Wentuorth, 3 Clayton, and otlier cases reported, 2 

Bro. C. C. 11. See, however, Bid- Swanst. 221, note. 
lock V. Richardson, 11 Vcs. Jr. 373 ; 



352 PLEAS. 

make any discovery which may affect his own 
titlc(m). Thus if a hill is filed for discovery of goods 
purcliascd of a bankrupt, the defendant may plead 
that he purchased them bona fide for a valuable 
consideration, paid before the commission of bank- 
rupt was sued out, and before he had any notice of 
the bankruptcy(w). 

Pleas have been hitherto considered 
[*289] with reference *only to original bills, and 
of these a certiorari bill, from the nature of 
the proceedings upon it, will not in general admit 
of a plea((>). But the same grounds of plea will 
hold in many cases to the several other kinds of 
bills according to their respective natures; 
and some of them, as already observed, admit of 
a peculiar defence which may be urged by way of 
plea. 

Thus if a bill of revivor is brought without suffi- 
cient cause to revive the suit against the defend- 
ant, and this is not apparent on the bill, tlie defend- 
ant may plead the matter necessary to show that 
the plaintiff is not entitled to revive the suit against 
him(p)(l). Or if the plaintiff is not entitled to re- 
vive the suit at all, though a title is stated in the 
bill, so that the defendant cannot demur, the ob- 
jection to the plaintiff's title may also be taken by 

{m 3 Vcs. Jr. 458. And see Cp) Harris v. Pollard, 'i^.'Wms. 

above. -275, et seq. 3 Atk. 302. 348 ; S. C. 2 Eq. Ca. Abr. 2 ; Hug- 

(n) Perrat v. Ballard, 2 Ca. in gins v. York Buildings Comp. 2 

Cha. 72 ; Hojman v. Gimielrlon, Eq. Ca. Abr. 3. A person made a 

Finch R. 31; Abery v. Williams, 1 defendant by a bill of revivor cannot 

Verii. 27. su])f)ort, as a defence, a plea previ- 

(o) See however, Cookv. Dclebere, ousiy set up by the orijjinal defendant, 

3 Ch. Rep. 6G, where a plea to a and overruled, Samuda v. Furlado, 

certiorari bill, of a decree in the in- 3 Bro. C. C. 70. 
ferior court, is mentioned. 

(1) See the form of a plea to a bill of revivor, Willis, 583. 



PLEAS. 353 

way of plea. Indeed it seems to have been thought 
that a defendant could only object to revivor by 
way of plea or demurrer(5'), and there may be 
great convenience in thus making the objection. 
For if the defendant objects by answer merely, the 
point can only be determined by bringing the cause 
regularly to a hearing ; but if the objection is 
taken by plea or demurrer, it may in ge- 
neral be immediately ^determined in a [*290] 
summary way. However, if a defendant 
objects by answer only, or does not object at all, 
yet if it appears to the court that the plaintiff has 
no title to revive the suit against the defendant, he 
can take no benefit from it(r)(l). If a person en- 
titled to revive a suit does not proceed in due time 
he may be barred by the statute for limitation of 
actions, which may be pleaded to a bill of revivor 
afterwards filed(5). If a supplemental bill is 
brought upon matter which arose before the origi- 
nal bill was filed, and this is not apparent on the 
bill, the defendant may plead that fact(<)(2). And 
if a bill is amended by stating a matter arisen sub- 
sequent to the filing of the bill, and which conse- 
quently ought to have been the subject of a supple- 
mental bill, advantage may be taken of the irre- 
gularity by way of plea, if it does not sufiiciently 

(9) Harris v. Pollard, 3 P. Wnis. seq., and the cases cited, and Earl of 

348. Egremoni v. Hamilton, 1 Ball & B. 

(r) Harris V. Pollard, 3 P. Wins. 51 f!. 

348. (t) See Lewellen v. Mackvorth, 2 

(s) Hollingshead's caso, 1 P. Wms. Atk. 40 ; Baldxcin v. Mackown, 3 

742. And see 2 Sch. & Lefr. 632, et Atk. 817. 



(1) But see the cas3 of Lewis v. Bridgman, 2 Sitn. 465. 

(2) See the form of a pica to a supplemental bill, WiUia, 585. 

45 



354 PLEAS. 

appear on the bill to tbund a demurr<3r(5) : but if 
the defendant answers ho waives the objection to 
the irregularity, and cannot make it at the hear- 

ing(0. 

A cross-bill differing in nothing from the first 
species of bills, with respect to which pleas in gene- 
ral have been considered, except that it is always 
occasioned by a former bill, it is not liable to any 

plea which will not hold to the first species 
[*291] of bills. And a cross-bill *ingeneral is not 

liable to some pleas which will hold to the 
first species of bills; as pleas to the jurisdiction of 
the court, and pleas to the person of the plaintiff, 
the sufficiency of which seem both affirmed by the 
orginalbill; unless the cross-bill is exhibited in 
the name of some person alone,^ wlso is alone in- 
capable of instituting a suit, as an infant, a feme 
covert, an "idiot, or a lunatic(t/). 

It has been already mcntioned(ar) that a part of 
the constant defence to a bill of review, for error 
apparent on a decree, has been said to be by a plea 
of the (]ecree{y) ; but that a demurrer seemed to be 
the proper defence, and that the books of practice 
gave the form of a demurrer only to such a bill(2;). 
Where any matter beyond the decree, as length of 
time(«), a purchase for a valuable consideration, or 
any other matter, is to be offered against opening 

(s) See Brown v. Hlgden, 1 Atk. (y) Dancer, v. Evctt, 1 Vein. 392; 

2f>l ; Jones v. Jones, 3 Atk. 217, and Carlish v. Gotcr. Nels. Rep. 52.. 

above, p. 48, 49. (z) And see Needier v. Kendall. 

(t) Belchier v. Pearson, ;i( the Finch R. 468(1) 

Rolis, 13tli July 1782. (a) Gregor v. Molesucrth, 2 Ves 

{u') See above, p. 203, nolc {s). lO'.t : but sec above, p. 205. 



S 



Page 203. 



(1) AUo Webb V. Pell, 3 Paiges C. R. 3fJS. 



FLEAS. 355 

of the enrolnieiil, tlsat matter must be pleaded 
(b). And if a demurrer to a bill of review has 
been allowed, and the order allowing it 
is enrolled, it is an effectual bar *to a [*39'2| 
new bill of review(c) on the same grounds, 
and maybe pleaded accordingly. To a bill of re- 
view of a decree for payment of money, it has been 
objected by plea that according to the rule of the 
court(rZ) the money decreed ought to have been 
first paid, but the rule appears to have been dis- 
pensed with on security given(c); and as the bill 
of review would not stay process for compelling 
payment of the money, it may be doubted whether 
the objection was properly so made. A bill of re- 
view, upon the discovery of new matter, seems li- 
able to any plea which would have avoided the ef- 
feet of that matter if charged in the original bill. 
It seems to have been doubted whether the fact of 
the discovery of the matter thus alleged to support 
a bill of review can be traversed by plea after the 
court upon evidence of the fact has given leave to 
bring the bill, even if the defendant could traverse 
the fact by positive assertion of some flict which 
would demonstrate that the matter was within the 
knowledge of the party, so that he might have had 
the benefit of it in the original suit. But if the 

(b) Harhcellv. Townsend.^'QxQ. 220(1). 

P. C. 107; Toml. ed. ; and soe Gor- (f) Dtnny v. Filmer, 2 Ca. in 

■man v. M-Cullock, 5 Bro. P. C. 507 ; Cha. 133 ; S. C. 1 Vcrn. 135 ; I 

Toml. cd. As instance.'? in which Vern. 417 ; Pitt v. Earl of Arglass, 

the error alleged was not in the body 1 Vern. 441; IVooIj v. Tucker, '2 

of the dcrrce, see Cravborne v. Dal- Vern. 120. 

mahoy, 1 Cha. Rep. 231 ; Smilh v. (d) Ord. in Cha. ed. Bea. 3. 

Turner, 1 Vern. 273; and see 2 (e) Sart/e v. Dorci/, 2 Freeni. 172; 

Ves. 488, and Bradish v. Gee. Anili. S. C. 1 Ca. in Cha. 42. 

(1} And see cases collected in Blunl's edition of Ambler, ssime pgigei 

uote (1). 



356 



PLEAS. 



fact of the discovery is in issue in the cause, it 
6ught to be proved, to entitle the plaintiff to de- 
mand the judgment of the court on the matter al- 
leged, as ground for reviewing the de- 
[*293] cree(/) ; and it may consequently *be dis- 
proved by evidence on the part of the de- 
fendant. Upon a supplemental bill in nature of a 
bill of review of a decree not signed and enrolled, 
upon the alleged discovery of new matter, it has 
been said, that if tlie defendant can show that the 
allegation is false, he must do so by pica, and that 
it is too late to insist upon it by answer (^) ; but as 
the bill must allege the fact of discovery, and that 
fact must be the ground of the proceeding, it should 
seem that it is equally liable to traverse by answer, 
and by evidence, as any other fact stated in a bill 
If a decree is sought to be impeached on the 
ground of fraud, the proper defence seems to be a 
plea of the decree, accompanied by a denial of the 
fraud charged(^). 

If a plaintiff filing a bill to carry a decree into 
execution has no right to the benefit of the decree, 
the defendant may plead the fact, if it is not so 
apparent on the bill as to admit of a demurrer. 

Bills in the nature of bills of revivor or of 

(/) See p. 89. stances, ought to operate as a bar to 
(g-) 2 Atk. 40. The accuracy of the plaintifi's title under the old set- 
this report seems very questionable, tlement, which was dated in 1655 ; 
The supplemental bill was brought the defendants claiming under a sub- 
on discovery of an old settlement, sequent settlement made in 1694, 
found after a decree made in 1733. which had been constantly acted upon 
The cause came on upon the sup- by the family. MS. N. S. C. 2 Eq. 
plemental bill, and a rehearing of the Ca. Ab. 579. 

decree complained of, 7 July 1740. (k) Wichalse\. Short,3BTO.P.C. 

The decree was affirmed, and the 558, Toml. ed. S. C. 7 Vin. Ab. 398. 

supplemental bill dismissed without pi. 15; 2 Eq. Ca. Ab. 177; Loyd r. 

costs, principally on the ground, that Mansell, 2 P. Wms. 73. And see p. 

length of time, with collateral circum- 239, et seq. 



PLEAS. BS'rf 

supplemental *bills are liable to the same [*'29i] 
pleas as the billsof vvhosenature they partake. 

Having thus considered some of the principal 
grounds upon which pleas to the several kinds of 
bills may be supported, it will be proper to observe 
some particulars with respect to, 1, the nature of 
pleas in general ; 2, their form ; 3, the manner in 
which they are offered to the court ; and 4, the 
manner in which their validity is decided. 

1. In pleading there must in general be the 
same strictness in equity as at law(i) ; at least in 
matter of substance. A plea in bar must follow 
the bill, and not evade it, or mistake the subject of 
it(A:). If a plea does not go to the whole bill, it 
must express to what part of the bill the defendant 
pleads; and therefore a plea to such parts of the 
bill as are not answered must be overruled as too 
general(Z). So if the parts of the bill to which the 
plea extends are not clearly and precisely ex- 
pressed; as if the plea is general, with an excep- 
tion of matters after mentioned, and is accompa- 
nied by an answer, the plea is bad. For the court 
cannot judge what the plea covers, without looking 
into the answer, and determining whether it is suf- 
ficient or not, before the validity of the plea can 
be considered(m)(2). 

(i) 1 Vern. 114; 2 Atk. G32 13 Horsley, Mosely, 40. 

Ves. 233(1). (m) Salkeld v. Science, 2 Ves. 

(A) Asgill V. Dawson, Bunb. 70 ; 107 ; Howe v. Duppa, 1 Ves. & B. 

Child V. Gibson, 2 Atk. 603. 511. 

Q) Anon. 3 Atk. 70; Broom v. 

(1) Burditl T. Grew, 8 Pickering's R. 102 ■ Beamed Pleas, pre- 
face ; and note (a) to Willis on Pleading, 486 ; 1 Montague on Plead- 
ing, 26. 

(2) And see MS. case of Lcaycraft v. Dempsey, in note at p. 300. 



35.S 



PLEAS. 



It is generiilly conceived that a plea 
['*'295] ought not to ^contain more defences than 
one ; and though a plea may be bad in part 
and not in the vvhole(/?), and may accordingly be 
allowed in part and overruled in part(l), yet there 
does not appear any case in which two defences 
offered by a plea have been separated, and one 
allowed as a bar. Thus if a defendant pleads a 
line and non-claim, which is a legal bar, and a 
purchase for a valuable consideration without no- 
tice. of the plaiiitifl's claim, which is an equitable 
bar : if either should appear not to be a bar, as if 
the defendant by answer should admit facts amount- 
ing to notice ; or if the plea in respect to either 
part should be informal ; there seems to be no case 
in which tiie court has separated the two matters 
pleaded, and allowed one as a bar and disallowed 
the other. And as the end of a plea is to reduce 
the cause, or the part of it covered by a plea, to a 
single point(<?) ; in order to save expense to the 
parties, or to protect the defendant from a disco- 
very which he ought not to be compelled to make; 
and the court to that end instantly decides on the 
validity of the defence, taking the plea, and the 
bill so far as it is not contradicted by the plea, 
to be true : a double plea is generally consi- 
dered as informal and improper (2^). "For if two 

(n) 1 Atk. 53. 451. 539 ; 2 Atk. 14. 15 Ves. 82 ; 1 Ves. 6. B. 153, note, 

284 ; 1 Vcs. 205 : Welby v. Duke of 15G-7 ; 1 Madd. R. 194. 
PoW/anfZ, 2 Bro.'P. C.39, Toinl. od. (p) Whitbread \. Brockhurst, 1 

1 Jac. R. 466. Bro. C. C. 404 ; S. C. 2 Ves. & B. 

(o) 1 Atk. 54 ; 1 Bro. C. C. 417; 153, nolc. Nobkissen v. Hastings, 4 



(1) French v. Shotwell, 5 J. C. R 555 : .b'. C. on appeal, 20 J. Tt. 
S42 ; Lord Drogheda v. Ma/ojie^ Finlny's Digest, 440. 



PLEAS. ^159 

^matters of defence may l)e thus oftered. [' 290] 
the same reason will justify the making 
any number of defences in the same way, by which 
the ends intended by a plea would not be obtained 
and the court would be compelled to give instant 
judgment on a variety of defences, with all their 
circumstances, as alleged by the plea, before they 
are made out in proof; and consequently would 
decide upon a complicated case which might not 
exist. This reasoning perhaps does not in its ex- 
tent apply with equal force to the case of two se- )^ 
vera! bars pleaded as several pleas, though to the 
same matter : and it may be said that such plead- A- 
ing is admitted at law, and ought therefore to be V 
equally so in equity. But it should be considered 
that a plea is not the only mode of defence in equi- 
ty, and that therefore there is not the same neces- 
sity as at iaw for admitting this kind of pleading. 
But though a defence offered by way of plea con- 
sist of a great variety of circumstances, yet if they 
all tend to one point the plea may be good(o). 

Bro. C. C. 242 ; S. C. 2 Vcs. Jr. 84 ; to the defendant leave to ])Icad dou- 

Wood V. Strickland, 2 Ves. & B. b!o. Gibson v. Whitehead, 1 Madd. 

150; 3 iMadd. 8; 4 Madd. 245(1). 241(2). 

Bntit has been determined, that where (o) Cann v. Cann, IP. Wms. 

great inconvenience would result from 725; Ashurst \. Eyres, 3 Atk. 341 ; 

obedience to this! rule, tlie court on a 15 Ves. 83. 377. Leonard v. Leon- 

previous spceial application will give ard, 1 Ball &■ B. 323(3). And see 

(1) And see Suiters v. Tobias,! J. C. R. 214. 

(2) The court may permit a defendant to plead double, imder special 
circunibtances ; as where he could not make his defence by answer 
vvilhont setting" out a long account, which would be unnecessary, if the 
defence sought to be made by pica was valid. Van Hook v. WhiL- 
lock, 3 J'aige's C. R. 409. The case of Gibson v. Whilehead, supra, 
which is doubted by Mr. Willis, is upheld by Chancellor Walworth in 
the above case of Van Hook v. Whillock; and see Lube, 348, 

(3) aoodrich v. Prndlrlnn. 3 J. C. R. 384. 



/ 



360 PLEAS. 

Thus a plea of title deduced from tiie person under 
whom the plaintiff claims may be a good 
*plea though consisting of a great variety [*297] 
of circumstances(/?) ; for the title is a sin- 
gle point, to which the cause is reduced by the 
plca(^). It therefore seems that a plea can be al- 

^ lowed in part only with respect to its extent^ the 
quantity of the bill covered by it ; and that if any 
part of the defence made by the plea is bad, the 

^ whole must be overruled(r). 

A plea must aver facts to which the plaintiff may 

2 Blackst. 1028, as to the distinction Vps. & B. 511. Gait\. Oshaldeston, 

between a double plea, consisting of 1 Russ. 158; S. C. 5 Madd. 428. 

distinct propositions, and a single (9) See Doble v. Cridland, 2 Bro. 

plea consisting of one connected C. C.274. 

proposition formed from multifarious (r) As instances of a plea not be- 

circunistances(l). ing a complete defence to the bill, or 

(p) Martin &, Martin, House of to so much thereof as it purports to 

Lords, Cth March 1724-5, and Else cover, see Moore v. Hart, 1 Vern. 

V. Doughty, 1 P. Wms. 387, note, UO; Salkeld v. Science,2Yes. 101 ; 

Mr. Cox's ed. Howe v. Duppa, 1 Potter v. Davy, 3 Vin. Ab. 135; 



(1) See the case of Wilkins v. Stone, 2 Sim. 49, wliere a disclaimer 
was added to a plea and the plea overruled. It was looked upon as a 
double plea. 

It is the pleading of a double bar which constitutes duplicity in a 
plea. But a plea is not rendered double by the mere mention of aver- 
ments therein which are necessary to exclude conclusions arising from 
allegations in the bill intended to anticipate and defeat the bar which 
might bo set up by the plea. Chancellor Walworth, in Bogardus v. 
Rector, SfC, of Trinity Church, MS. 6 AuguU, 1833. His honor 
proves the propriety of inserting such averments, thus : " If the defend- 
" ant was not bound, by averments in his plea, to negative the allega- 
" tions in the bill inserted for the purpose of anticipating and displacing 
" the bar, the complainant would frequently be compelled to rely upon 
" the defendant's oath alone for the evidence of the truth of such alle- 
"gations; and he would have no opportunity to contradict that oath, 
" under the issue joined upon the plea. If that course of pleading 
'< were adopted, the whole plea might be true, although tiie answer in 
" support of such plea were absolutely false and could be proved to be 
" 60, if an opportunity were offered to the complainant for that pur- 
" pose." lb. 



PLEAS. 361 

rei)ly(5), and not in the nature of a demurrer, rest 
on facts in the bill(/). Tlie averments ought in 
general to be positivc(?«'). In some cases, indeed, 
a defendant has been permitted to aver according 
to the best of his knowledge and belief; as that an 
account is just and triie(x) ; and in all cases 
of negative averments(»/), *and of aver- [*298] 
ments of facts not within the immediate 
knowledge of the defcndant(c;), it may seem im- 
proper to require a positive assertion. Unless, how- 
ever, the averment is positive, the matter in issue 
appears to be, not the fact itself, but the defendant's 
belief of it: and the conscience of the defendant is 
saved by the nature of the oath adiiJnistered; 
which is, that so much of the plea as relates to his 
own acts is true, and that so much as relates to 
the acts of others he believes to be true. All the facts 
necessary to render the plea a complete equitable 
bar to the case made by the bill, so far as the plea 
extends, that the plaintiff may take issue upon it 
(«), must be clearly and distinctly averred* 
Averments are likewise necessary to exclude in- 
tendmeats(l) which would otherwise be made 

Iluare v. Parker, above, p. 277, note, true, even of that description of plea 

Jones V. Davis, 1() Ves. 262; Cham- which is termed negative, (above, p^ 

berlain v. Agar, 2 Yes. iS: H 25!); 230,) for it is the allinnative of the 

Spottiswood V. Stockdale, C -«.;<. R. jjropositioa w'lich is stated in the 

102 ; Barker v. Raij, 5 Madd. bi. bill. 

(s) 15 Ves. 377. (ti) 3 Atk. 500. 

{t) BickneU v. Gough, 3 Ant. 3 Atk. 70; Bur g any y. Ma' 

5jS; 2 Ves. 296; Roberts v. Hart- cat.., Totliill, 70. 

leij, 1 Bro. C. C. 56: 6 Ves. 5'Jt; (y) Sec Drew v. Drew, 2 Ves. & 

Billing V. Flight, 1 Madd. R. 230; B. 159. 

Stcf V. Andreics, 2 Madd. R. 6. (z) 2 Ves. & B. 162. 

The prominent distinction between a (a) Gilb. For. Rom. 58; 2 Ves- 

plea and a demurrer (Ord. in Cha. 296; and see Carleton \. Leightortf 

26 ed. Bea.) here noticed, is strictly 3 Meriv. 667. 

(I) The meaning of a:) intendment is, that alloiviog an averment to 
be true, but that at the sa:::e time a case may be supposed ccDsisleat 

46 



362 PLEAS. 

against the pleader : and the averments must be 
sufficient to support the plea.(&). 

If there is any charge in the bill, which is an 
equitable circumstance in favor of the plaintiff's 
case against the matter pleaded ; as fraud, or no- 
tice of title; that charge must be denied by way of 
answer, as well as by averment in the plea(c). 
In this case the answer must be full and clear, or 
it will not be effectual to support the plea 
[*299] (d) ; for the court will intend the ^matters 
so charged against the pleader, unless they 
are fully and clearly denied(e). But if they are 
in substance fully and clearly denied, it may be 
sufficient to support the plea, although all the cir- 
cumstances charged in the bill may not be precise- 
ly answered(/)(l). Though the court upon argu- 
ment of the plea, may hold these charges sufficient- 
ly denied by the answer to exclude intendments 
against the pleader, yet if the plaintiff thinks the 

(b) 2 Ves. 245; 2 Sch. & Lefr. (d) 3Atk. 304; Radford v. Wil- 
li!; 18 Ves. 182. son, 3 Alk. 815 ; 3 P. Wms. 145; 5 

(c) See the judgment in Bayley v. Bro. P. C. 5G1, Toml. cd. 

Adams, 6 Ves. 594 ; 2 Sch. «& Lefr. (c) 2 Atk. 241 ; Gilb. Ca. in Eq. 

727: 2Ves. &B.364; 5 Madil. 330; 185; As an example, see Hony v. 

6Madd. 64. 2 Sim. & Stu. 279. And Hony, 1 Sim. & Stu. 568. 

see above, p. 239, et seq. and p. 256. (/) 5 Bro. P. C. 561, Toml. ecL 



with it, which would render the averment inoperative as a full defence, 
such case shall be presumed, unless specifically excluded by particular 
averment ; as where a proposition in the disjunctive is not denied in 
both its parts, or a proposition in the conjunctive affirmed in both it» 
parts. Lube, 343. 

(1) The only way of testing the sufficiency of an answer in support 
of a plea is, to consider every allegation in tlie bill which is not suffi- 
ciently denied by the answer as true; and then to inquire, whether, 
these facts being admitted, the plea is a sufficient bar to the claim of 
the complainant for relief. Chancellor Walworth, in Bogardus V. 
Rector, Sfc, of Trinity Church, MS. 6 August, 1833. 



PLEAS. 363 

answer to any of them is evasive, he may except to 
the sufficiency of the answer in those points. A 
defendant may also support his plea by an an- 
swer toucliing any thing not charged by the bill, 
as notice of a title, or fraud ; for by such an answer 
nothing is put in issue covered by the plea from 
being put in issue(^), and the answer can only be 
used to support or disprove the plea(//). But if a 
plea is coupled with an answer to any part of the 
bill covered by the plea, and which consequently 
the defendant by the plea declines to answer, the 
plea will upon argument be overruled(/). 

Where facts appeared upon an answer to an 
original bill, which would operate to avoid the de- 
fence made by plea to an amended bill, the an- 
swer to the original bill was read on the argument 
of the plea, to counterplead the plea(fc) ; so it 
should seem if the answer to an original 
bill would disprove an averment in a *plea [*300] 
to an amended bill, the court might permit 
it to be read for that purpose(/). 

2. A plea, like a demurrer, is introduced by a 
protestation against the confession of the truth of 
any matter contained in the bill. For the purpose 
of determining the validity of the plea, the bill, so 
far as it is not contradicted by the plea(?w), is taken 
for true ; and the protestation has probably been 

(g) Gilb. For. Rom. 58, 59. 15th March, 1715. 

(h) See 3 Atk. 303. (I) See the ca.'^e of Ihjldyard v. 

(i) CottingLon\. Fletcher, 2 Atk. Crtssy, 3 Alk. 303. 

155. Glib. For. Rom. 58(1). (m) See Plunket v. Penson, 2 Atk, 

(^-) HijUard v. While, in Chan. 51; 15 Vcs. 377. 



(1) Souzer v. De Meyer, 2 Paige's C li. 574 ; Bogardus r. Hector, 
SfC, of Trinity Church, MS. (N. Y. Chancery.) 



364 PLEAS. 

used to prevent the same conclusion for other pur- 
poses. The extent of the plea, that is, whether it 
is intended to cover the w hole bill, or a part of it 
only, and what part in particular, is usually stated 
in the next place : and this, as before observed(w), 
must be clearly and distinctly shown(l). The 

(n) Page 291. 



(I) In a late case, Cliancellor Walwortli lias properly shown how be 
will notice a want of form in pleading'. The error had not been found 
out by the opposing counsel. An answer and plea were put in. The 
plea went upon a stated account up to a certain time, and the answer 
took up the matter from such period. The answer preceded the plea ; 
and the pleading commenced by a statement of its being, " The answer 
" and plea of J. D., defendant, to the bill of complaint, &c." It 
then went on with the usual saving and reservation of errors ; and " for 
" answer thereto or to so much thereof as this defendant is advised, it is 
" material or necessary for her to make answer unto, answering, says, 
" &c." And ended, with a denial of combination, and the general 
traverse. The answer was limited as to discovery to the extent in- 
tended. And in coming to the plea, the usual commencement oc^ 
curred. " And as to so much and such parts of the said bill as seeks 
" an account of the said one equal third part of a net moiety of the 
" rents and profits of the said leasehold premi'^es prior to the first day of 
" February, one thousand eight hundred ai;d thirty-one, and including 
" the quarters' rents due that day, this defeiidant for plea tljereto, 
" saith, &:c." The following is the chancellor's opinion: " The plea 
*' in this case is a sufBcienl defence to so much of the bill as seeks an 
"• account and satisfaction of the rents and profits of the premises in the 
" bill mentioned up to and including tlie 1st of February, UJSl. But 
" it is defective in a point of form, as being overruled by the answer. 
*' It is not necessary to decide the question, whether any of the facts 
«* stated in the answer do, in fact, cover the part of liie bill inlcnded to 
" be covered by ;lie plea. 1 am inclined to think, however, they do 
*' not. But, by referring to the commencement of (he answer, it will 
'« be seen, that it purports to be an answer to the whole of the bill, 
•' \iilhout excepting those parts to which the defendant has pleaded in 
t' bar both to the discovery and rilicf. The defendant may plead, 
>' answer and demur to the sanie bill ; but each of these defences must 
f refer to and profess, in terms, to be put jn as a defence to separate 



PLEAS. 



365 



matter relied upon as an objection to the jurisdic- 
tion of the court, to the person of the plaintifl' or 



" and tlislinct parts of the bill. Tims, if an answer corrmcnces as an 
" answer to tlie whole bill, it will overrule a plea or demurrer to any 
" particular part of the bill, altliough the defendant does not, in fact, 
" answer that part of the bill which is covered by the plea or denr-.urrer. 
"Xiord Redesdale says, if the plea is to part of the bill only, and there 
*' is an answer to the rest, it is expressed to be an answer to so much of 
" the bill as is not before pleaded to, and is preceded by a protestation 
" against the waiver of the plea, (Jlitf. PL 4 Land. ed. 300.) In 
" practice, the plea or demurrer usually precedes the answer, which, 
" in that case, commences thus : ' And as to the residue of the said bill, 
*' ' this defendant, not waiving his said plea, but relying thereon, and 
"'saving and reserving to himself, &c., for answer thereto or to so 
" ' much thereof as he is advised is material, &c.' (^Lube's Eq- PI, 
" 352.) I see no objection, except as to the convenience of reference, 
" in permitting the answer to precede the plea, as has been done in the 
" present case, but then the pleader must, by a reference to the part of 
" the bill which is subsequently covered by the plea or otherwise show 
" that it is an answer to the residue of the bill only. As the answer in 
" this case commences and concludes as an answer to the whole bill, in 
" the same manner as if it was not intended to be followed b}' a plea 
" as to part, in point of form the plea is overruled by the answer, and 
" cannot, therefore, be allow'ed. 

" As this plea, however, is a full defence to so much of the bill as it 
" professes to cover and is merely informal, in consequence of the in- 
" advertence of the solicitor in not excepting that part of the bill in 
" the commencement of his answer, it would be a matter almost of 
" course to permit him to amend on payment of costs. As the cause 
" must go to a hearing upon the other part of the bill, it will be equally 
" beneficial to the defendant if I permit the pica to stand for an answer. 
" I shall, therefore, direct it to stand for an answer, declaring it as a 
" good defence, if established by proof, to so much of the bill as seeks 
^' for an account and satisfaction of the rents and profits up to and in- 
<' eluding the 1st February, 1831 ; and that the complainant is not, by 
" exceptions, to be permitted to call for an account for those rents and 
" profits, or any further answer as to that part of the bill. This, how- 
«' ever, will not preclude the complainant from excepting to the answer 
«' to the o'her parts of the bill, if it is insufficient. (^Coke v. Wilcox, 
*' Mozel. Rep. 74.) And the defendant must pay the costs of the 
M argument of the plea." Leaycraft v. Dempse]j, MS. 16 July, 1833. 



366 



PLEAS. 



defendant, or in bar of the suit, generally follows, 
accompanied by such averments as are necessary 
to support it. The plea commonly concludes with 
a repetition that the matters so offered are relied 
upon as an objection or bar to the suit, or so much 
of it as the plea extends to ; and prays the judg- 
ment of the court, whether the defendant ought to 
be compelled further to answer the bill, or such 
part as is thus pleaded to. If the plea is accom- 
panied by an answer merely to support it, the an- 
swer is stated to be made for that purpose, not 
waiving the plea. If the plea is to part of a bill 
only, and there is an answer to the rest, 
[*301] it is expressed to '^be an answer to so 
much of the bill as is not before pleaded to, 
and is preceded by the same protestation against 
waiver of the plea. 

3. A plea(/«) is filed like a demurrer in the pro- 
per office; and pleas in bar of matters in pais{o\ 
must be upon oath of the defendant ; but pleas to 
the jurisdiction of the court, or disability of the 
person of the plaintiff(7?), or pleas in bar of any 
matter of record, or of matters recorded, or as of 
record in the court itself(<2'), or any other court(r), 
need not be upon oath(l). 

(n) A })lea must be signed by {q) Prac. Reg. 324, Wy. ed. 

counsel, unless taken by commission- (r) But if a pica of matters re- 

ers. Simes \. Smith, 4 Madd. 3GG; corded be accompanied with aver- 

See below, p. 315, as to the taking of ments of matters iix pais, it must be 

an answer. upon oatli. Wall v. Slitbbs, 2 Ves. 

(o) Prac. Reg. 325. Wy. ed. & Bea. 354. See above, pp. 22G, 227. 

(p) Ord. in Ch. 27. 172 ; ed. Bea. 229. 



(I) CcirroUv. Waring, 2 Gill, tf- Johns. 491. Leave to withdraw 
a plea will not be givcD. Kirhy v. Taylor, 6 J. C. R. 242. There 
cao be no demurrer to a plea. If supposed insufficientj it may be set 



PLEAS. 367 

4. If the plaintiff conceives a plea to be defective 
in point of form, or substance, he may take the 
judgment of the court upon its sufficiency. And 
if the defendant is anxious to have the point deter- 
mined, he may also take the same proceeding(l). 
Upon argument of a plea it may either be allowed 
simply, or the benefit of it may be saved to the 
hearing, or it may be ordered to stand for an an- 
swer. In the first case the plea is determined to 
be a full bar to so much of the bill as it covers, if 
the matter pleaded, with the averments necessary 
to support it, are true. If, therefore, a plea is al- 
lowed upon argument, or the plaintiff without ar- 
gument thinks it, though good in form and 
substance, not true in point of *fact, he [*302] 
may take issue upon it, and proceed to dis- 
prove the facts upon which it is endeavored to be 
support ed(5). For if the plea is upon argument 
held to be good, or the plaintiff admits it to be so 

(«) Prac. Rpg. 330. Wy. cd(2). 



down for argument. Thomas's trustees v. Brashear, 4 Monroe's R. 
67. 

(1) See above. By llie practice of the State of New-York, the 
complainant has ten Jays to file a replication to the plea or to amend 
Lis bill; and if he does not take issue on tlie plea c~ amend his bill 
within that time, either party may notice the plea for argument at the 
next or any subsequent term. If the plea is allowed, the complainant 
may, within ten days after notice of such allowance, take issue on the 
plea upon payment of the hearing therein. 47//i Rule. As to a de- 
fendant pleading matter of record, see 48//t Rule. 

(2) See 41lh Rule of j\/\ Y. Chancery. In Bogardus v. Rector ^ 
SfC, of Trinity Church, IMS. 6 August, 1833, Chancellor Walworth 
allowed a plea, and ordered the bill to be dismissed with costs : unless, 
within twenty days, the complainant should pay the costs of the argu- 
ment of the plea and file a replication to the answer. 



308 PLEAS. 

by replying to it(/), the truth of the pica is the 
only subject of question remaining, so far as the 
plea extends ; and nothing but the matters contain- 
ed in the plea, as to so much of the bill as the plea 
covers, is in issue between the partics(2/). If there- 
fore issue is thus taken upon the plea, the defendant 
must prove the facts it suggests(a;). If he fails in 
this proof, so that at the hearing of the cause the 
plea is held to be no bar, and the plea extends to 
discovery sought by the bill, the plaintiff' is not to 
lose the benefit of that discovery, but the court 
will order the defendant to be examined on inter- 
rogatories, to supply the defect(i/). But if the de- 
fendant proves the truth of the matter pleaded, the 
suit, so far as the plea extends, is barred(2;), even 
though the plea is not good either in point of form 
or substance. Therefore where a defendant plead- 
ed a purchase for a valuable consideration, and 
omitted to deny notice of the plaintiff^'s title, 
and the plaintiff" replied, it was determined that 

(0 1 Vcrn. 72 ; Prcc. in Ch. (y) Nels. Rep. 119 ; Asileij r. 

58(1). Fountaine, Rep. Tern. Finch 4 ; 2 

{u) 2 Wms.'db; Parker V. Blyth- Ves. 247 ; G Madd. 63 j 2 Sim. & 

more, Prec. in Chan. 58 ; Soe Cooper Stu. 278(3). 

V. Tragonnel, 1 Ch. Rep. 174(2). (z) See Wichalse v. Short, 3 Bro. 

{x) IVlos. 73 ; 2 Vcs. 247 ; Ord. v. P. C. 558(4). 
Huddleston, Dick. 510. 

(1) Hughes V. Blake, 6 JVheat. 472 ; Dows v. MMichacI, 2 Paige's 
C. R. 345. 

(2) The issue, as to the truth of the plea, is to be referred to the 
slate of the facts at the time of filings tlie plea. Cook v. Jlxtncius, 4 
J. C. R. 16G. 

(3) Stiuzer v. De Meyer, 2 Paige's C. R. 574. A plea which sets 
up no valid defence to an)' part of the matter it professes to cover, 
should be overruled absolutely, and will not be permitted to stand for an 
answer. Orcvtt v. Orms, 3 lb. 459. 

(4) Hughes V. Blake, su^ra ; Dows y. M^Michael, supra. 



PLEAS. 



369 



the plea, though ^irregular, had been [*303] 
admitted by the rephcation to be good, 
and that the fact of notice not being in issue, the 
defendant, proving what he had pleaded, was enti- 
tled to have the bill dismissed(«'i). 

If upon argument the benefit of a plea is saved 
to the hearing, it is considered that so far as ap- 
pears to the court it may be a defence ; but that 
there may be matter disclosed in evidence which 
would avoid it, supposing the matter pleaded to be 
strictly true ; and the court therefore will not pre- 
clude the question(l). 

When a plea is ordered to stand for an answer^ 
it is merely determined that it contains matter 
which may be a defence, or part of a defence ; but 
that it is not a full defence, or it has been informally 
ofl'ered by way of plea, or it has not been properly 
supported by answer, so that the truth of it is 
doubtful. For if a plea requires an answer to 
support it, upon argument of the plea, the answer 
may read to counterprove the plea ; and if the de- 
fendant appears not to have sufficiently supported 
his plea by his answer the plea must be overruled, 
or ordered to stand for an answer only(&). A plea 
is usually ordered to stand for an answer, where it 
states matter which may be a defence to the bill, 

(a) Harris v. Ingledew, 3 P. (b) See Hildyard v. Crcssij, 3 Atk, 
Wins. 94, 95. 30-1(2). 



(1) By tlie practice in tlie State of New-York, there cannot be a 
plea after one has been overruled. 49lh Rule ; and bee Rowley V. 
Ecc/es, 1 Sim. t|. S. 511. 

(2) Also Kiriy v. T'aylor, 6 J. C. R. 242. 

47 



370 PLEAS. 

though perhaps not proper for a plea, or informal- 
ly pleade(l(6). But if a plea states no- 
[*304] thing *vvhich can beadefence it is merely 
overrulec](2). If a plea is ordered to stand 
for an answer, it is allowed to be a sufficient an- 
swer to so much of the bill as it covers(c), unless 
by the order liberty is given to except(£^). But 
that liberty may be qualified, so as to protect the 
defendant from any particular discovery which ho 
ought not to be compelled to make(c). And if a 
plea is accompanied by an answer, and is ordered 
to stand for an answer, without liberty to except, 
the plaintiff may yet except to the answer, as in- 
sufficient to the parts of the bill not covered by 
the plea(/). If a plea accompanied by an answer 
is allowed, the answer may be read at the hearing 

(6) As examples, see Moore v. 239. Mnilland\. Wilson, 2 A\k.S\i. 

Hart, 1 Vern. 110. S. C. ibid. 201. See Dryden v. Rohinson, 2 Sim. & 

Kemj) V. Kclsey, Prcc. in Cha. 544. Stu. 52y(3). 

Salkeld v. Science, 2 Ves. 107. (c) See Alardes v. Campbell, 

Whitbrcad V. Brockhursl, 1 Bro. C. Buiib. 265. S. C. 1 Turn. R. 133, 

C. 404(1). S. C. 2 Ves. & B. 153, n. note. Herbert v. Montagu, Pinch R. 

Whitchurch v. Bevis, 2 Bro. C. C. 117. Brereton v. Gramul, 2 Atk. 

559. Wood V. Strickland, 2 Ves. & 240. Pusey v. Dcsbouvrie, 3 P. 

B. 150. Wms. 315. King v. Holcombe, 4 Bro. 

(c) Cokcv. Wilcocks, Mos. 73. 3 0.0.439. Bayley \. Adams, 6 Yes. 
P. Wms. 240. 3 Aik. 815^3). 58G. 

(d) Sellon V. Lewen, 3 P. Wms. (/) Coke v. Wilcocks, Mos. 73. 



(1) Orcutiv. Orms, 2 Paige's C. R. 459. And see Souzer v. De 
Meyer, 2 Paige's C. R. 574. Where a plea has been overruled oa 
the merits, the same matter cannot be set up in the answer as a bar to 
the suit, without the special permission of the court. Townsend v. 
Townsend, 3 lb. 413. 

(2) OrcuU V. Orms, 3 Paige's C. R. 459. 

(3) Kirby v. Taylor, G J. C. R. 242 ; Orcutl V. Orms, supra. Id 
this case (Orcu^f v. Orms.) Chancellor Walworth has said, that the 
answer will be considered as a full answer, though not necessarily a 
perfect defence. 



PLEAS. 



371 



of the cause to counterprove the plea( «•)(!). 
There are some pleas which are pleaded with 
such circumstances that their truth cannot be dis- 
puted ; and others being pleas of matter of fact, 
the truth of which may be immediately as- 
certained by mere inquiry, *it is usually [*305] 
referred to one of the masters of the court 
to make the inquiry. These pleas, therefore, are 
not usually argued(/«). Thus pleas of outlawry or 
excommunication, being always pleaded suh sigil- 
lo, the truth of the fact pleaded is ascertained by 
the form of pleading, and the suit is consequently 
delayed until the disability shall be removed, un- 
less the plaintiff can show that the plea is defect- 
ive in form, or that it does not apply to the parti- 
cular case, and for these purposes he may have the 
plea argued. Pleas of a former decree(i), or of 
another suit depending(fc), are generally referred 
to a master to inquire into the fact ; and if the 
master reports the fact true, the bill stands instant- 
ly dismissed, unless the court otherwise orders(Z). 
But the plaintiff may except to the master's report, 
and bring on the matter to be argued before the 

(g) 3 Atk. 304. But the plaintiff (t) Morgan v. Morgan, 1 Atk. 

may not amend his bill as of course 53. 

afier a plea to part of the l.ill has (k) Orel, in Cha. 98. ed. 1739. 
been allowed. Taylor v. Shaw, 2 {I) See Crofts v. Wortley, 1 Ca in 

Sim. & Stu. 12(2). Cha. 211. See above, pp. 237. 246. 

(Ji) Ord. in Ch. 175, ed. Bea. 



(1) After a pica has been overruled, the same defence may be in- A, 
sisted on by way of answer. Goodrich v. Pendleton, 4 J. C. R. 549. 
Cut Ihi's is not so, upon a plea of the statute of limitations. Carter V 
Murrny,! J. C. R. IG7. 

(2) If a plea be overruled, the complainant may, within ten days 
thereafter, amend bis bill of course and without costs. Abth Rule of 
JV. Y. Chancery, 



372 . PLEAS. 

coiirt(m) ; and if he conceives the plea to be de- 
fective, in point of form or otherwise, independent 
of the mere truth of the fact pleaded, he may set 
down the plea to be argued as in the case of pleas 
in general(w). 

(m) Durrand v. Hutchinson, Urlin v. , 1 Vern. 332, au'l Fos-, 

Mich. 1771, on Exceptions. ter v. Vassall, 3 Atk. 587. 

(n) Ord. in Ch. 176, ed. Bea. See 



*CH AFTER II. [*30G] 

SECTION II. 
PART III. 

Of An Steers and Disclaimers ; and of Demur- 
rers^ Pleas, Ansicers and Disclaimers, or any 
two or more of them, jointly. 

If a plea is overruled the defendant may insist 
on the same matter by way of ansvver(rt). And 
whatever part of the bill is not covered by demur- 
rer or plea, must be defended by answer(6), unless 
the defendant disclaims. In treating of answers 
and disclaimers will be considered, 1, The general 
nature of answers ; 2, Their form ; 3, The manner 
in which their sufficiency is decided upon, and 
deficiency supplied ; and 4, The nature and form 
of disclaimers. 

1. It has been already(c) mentioned, that every 
plaintiff is entitled to a discovery from the de- 
fendant of the matters charged in the bill(rf), 

(a) 2 Vcs. 492. Earl of SvffoJk mcrous, cacli, it seems, is entitled to 

V. Green, 1 Alk. 450 j 1 Coi R. put in a siparatc answer, although 

228(1). the}' should have but one common dc- 

(6) Prac. Reg. Wy. ed. fence. Van Saudau v. Aloore, 1 

(c) Page 9. Rusp. R. 441, on appeal. See S. C. 

{d) Where the defendants are nu- 2 Sim. & Stu. 509. 

(1) S. P. Goodrich v. Pendleton, 4 J. C. R. 549. But see Carter 
V. Murray, 7 lb. 167 ; and particularly the observations of Sutherland y '^ 
J. in (S. C.) Murray v. Cosier, 4 Cow. 620. It is said, in Townsend y. 
Townscnd, 2 Paige's C. R. 413, that where a plea has beea overruled on .-"4-« 
the merits, the same matter cannot be set up iu the answer as a bar to 
the suit, without the special permission of the court. 



374 ANSWERS. 

[*307] provided they are *necessary to ascertain 
facts material to the merits of his case, and 
to enable him to obtain a decree. The plaintiff 
may require this discovery, either because he can- 
not prove the facts, or in aid of proof, and to avoid 
expense(c). He is also entitled to a discovery of 
matters necessary to substantiate the proceedings, 
and make them regular and effectual in a court of 
equity (jf'). However, if the discovery sought by 
a bill is matter of scandal, or will subject the de- 
fendant to any pain, penalty, or forfeiture, he is 
not bound to make it(^) ; and if he does not think 
proper to defend himself from the discovery by de- 
murrer or plea, according to the circumstances of 
the case, he has been permitted by answer to in- 
sist that he is not obliged to make the discovery(/t). 

(e) 2 Atk. 211. V. Ellison, 2 Bro. C. C. 252, Cart- 

{/) 2 Ves. 492; 6 Ves. 37, 38, wriglu v. Hatebj, 3 Bro. C. C. 238, 

Coop. R. 214. Shepherd v. Huberts, 3 Bro. C. C. 

{g) 15 Ves. 378 ; and see authori- 23'J, 7 Ves. 288, 11 Ves. 42, but see 

ties cited above, p. 193(1J. Newman v. Godfrey, 'J, Ln-. (J. '/. 

(A.) 3 P. Wind. 238; Finch v. 332,) unless perhaps he ma;, be a nr,)- 

Finch, 2 Ves. 491 ; Honeywood v. fcssional person, and the discovery be 

Sclwin, 3 Atk. 276 ; Paxlon v. Dou- sought of matters confidentially com- 

glas, 19 Ves. 225; Parkhurst v. niunicated to him, {Stratford v; 

Lowlen, 1 Meriv. 391. 1 Swanst. Hogan, 2 Ball &. B. 104,) if a per- 

192. 305(2). It has also been held, son answers at all, he may be requir- 

that a purchaser for a valuable consi- ed to answer all the facts stated in the 

deration, without notice, may by an- bill, from which he does not distinctly 

swer protect himself from making protect himself from answering by 

discovery of facts which might defeat either of the other modes of defence, 

his enjoyment. (Jerrard v. San- See DoLder v. Lord Huntingfield, 

tiers, 2 Ves. Jr. 454; S. C. 4 Bro. 11 Ves. 283, in which the earlier 

CO. 322; 15 Ves. 378 ; 1 Ball & cases are cited, Faidder v. Stuart, 

B. 325. And sec Lord RancUJ'e v. 11 Ves. 296, Shaic \. Ching, 11 Ves. 

Parkyns, G Dow P. C. 230, but see 303. Roue v. Teed, 15 Ves. 372, 

Orey v. Leighlon, 2 Sim. & Stu. Somervillc \. Mackay, IG Ves. 382, 

234(3). It seems that in every other Leonard v. Leonard, 1 Ball & B; 

case, even in that of a mere witness 323, 3 Madd. 70, v. Harrison. 4 

being made a defendant, (see Cookson Madd. 252, and 1 Sim. & Stu. 6. See, 

(1) And also page 195, anfe; Livingston v. Harrii, 3 Paige's C, 
R. 528. 

(2) And see Cuyler r. Bngcrt, 3 Paige's C R. 106. 

(3) Cvyler v. Bogert, supra. 



ANSWERS. 



375 



In this case the plaintiff *may except to the [*308] 
defendant's answer as insufficient; and 
upon that exception it will be determined whe- 
ther the defendant is or is not obliged to make 
the discovery(/)(2). If the defence whichcan be 
made to a bill consists of a variety of circum- 
stances, so that it is not proper to be offered by way 
of plea(^')'; or if it is doubtful whether as a plea 
it will hold ; the defendant may set forth the whole 
by way of answer, and pray the same benefit of so 
much as goes in bar, as if it had been pleaded to 
the bill(/). Or if the defendant can offer a matter 
of plea which would be a complete bar, but has no 
occasion to protect himself from any discovery 
sought by the bill, and can offer circumstances 
which he conceives to be favorable to his case, and 

however, the distinction taken below, be founded. And see below, p. 316, 

pp. 310, 311, 313, between the cases note (9)(I). 

in which the defentlant bv answer de- (i) 2 Ves. Jr. 87 ; and see 1 Ves. 

nics the title of the plaintifl', in res- Jr. 294, note. 

pect of which the discovery is sought, (A) Chapman \. Turner, 1 Atk. 

and those in which he thereby denies 54. 

th.: validity ot the ground upon which (I) See Norton v. Turvill, 2 P. 

that tiUe is alleged by the plaintiil' to Wms. 144. 

(1) Aho Desplaces v. Guris,\ Edwards' V. C. Rep. 350; Whit- 
ney V. Belden, lb. 386 ; and see all the cases on this subject well di- 
gested in note (1) to Sweet v. Young, in 1 vol. BlunCs edition of Am- 
bler. 

(2) By the 2Uh Rule of the JV. F. Chancery, exceptions to an 
answer in an injunction cause must be filed within ten days after the 
defendant has answered : otherwise, it will not stay a motion to dis- 
solve the injunction. But this rule, it has been decided by Chancellor 
Walworth, does not apply where a complainant has waived the oalh to 
the answer. Livingston v. Livingstun, MS. 18 June, 1833; and see 
Rule 40. Besides these rules, there are many of the same court re- 
lating to exceptions. As to filing and submitting, Jfu/e 50 ; reference, 
R. 51, 52, 53. 125, 126; master's report, R. 55, 56, 57. 60. 62; 
scandal and impertinence, R. 53. 57. 106 ; further time to answer, li. 
55. 58, 59 ; exceptions to report, R. 62 ; costs, R. 58, 59, 60. 63. 



376 ANSWERS. 

which he could not offer together with a plea, he 
may set forth the whole matter in the 
[*309] same *manner. Thus, if a purchaser for 
a valuable consideration, clear of all char- 
ges of fraud or notice, can offer additional circum- 
stances in his favor, which he cannot set forth by 
way of plea, or if answer to support a plea as the 
expending a considerable sum of money in improve- 
ments, with the knowledge of the plaintiff, it may 
be more prudent to set out the whole by way of 
answer than to rely on the single defence by way 
of plea, unless it is material to prevent disclosure 
of any circumi^tance attending his title. For a de- 
fence which, if insisted on by plea, would protect 
the defendant from a discovery, will not in general 
do so if offered by way of answer(/). To so much 
of the bill as it is necessary and material for the 
defendant to answer (?//) he must speak directly, 
^ and without evasion, and must not merely answer 
'\ the several charges literally, but he must confess 
/ or traverse the substance of each charge(w)(l). 

(Z) 2 Eq. Ca. Ab. G7 ; Richardson see below 316, note (q). 

V. Mitchell. Sel. Ca. in Ch. 51. (n) Ord. in Ch. 28. 179. ed. Bea. 

Above, p. 307; note (A). Hind v. Dods, Barnard, 258 ; S. C. 

(m) It seems, a mere trustee, in- 2 Eq. Ca. Ab. 69; Deane v. Bas- 

cumbrancer, or heir, need answer so fron, Anstr. 64; 2 Ves. & B. 162. 

much only of Ihe bill as applies to And see Hall v. Bodily, 1 Vern, 

him. Coop. R. 215. And further, 470. 
with respect to materiality of answer, 

(1) IFoods V. Jilorrell, 1 J. C. R. 103; Morris v. Parker, Z lb. 
297 ; Smilh v. Lasher, 5 lb. 247 ; Pellil v. Candler, on appeal, 3 
WendelPs /2. 618. If a defendant submit to answer at all, be must 
answer fully and particularly ; not merely limiting his responses to (he 
interrogations of the bill. HigUiorp v. Honk, 1 Gill Sf Johns- 270; 
Methodist Episcopal Church v. Jacques, 1 J. C. R. 65 ; and see 
Phillips Y. Provoost, 4 J. C. R. 205 ; Frost v. Beekman, 1 lb. 238 ; 
•» Cuyler v. Bogert, 3 Paige's C. R. 186 ; Utica Insurance Co, v. Lynch, 



( 



ANSWERS. 377 

And wherever there are particular precise charges 
(o) they must be answered particularly and pre- 
cisely, and not in a general manner, though 
the general answer may amount *to a full [^310] 
denial of the chargcsQ>)(l). Thus where 
a bill required a general account, and at the same 

(0) Those however, it seems, to case, Sel. Ca. in Ch. 53 ; Pruut v. 
the end mentioned in the text, must Underwood, 2 Cox R. 135 ; 6 Ves. 
be spcciiilly interrogated to. See 792; Wharton v. Wharlon, 1 Sim. 
King V. Marissal, 3 Atk. 102, JJu- <fc Stu. 235. And see Amhurst v. 
rant v. Durant, 1 Cox R. 58. King, 2 Sim. & Stu. 183. 

(p) 2 Eq. Ca. Ab. G7 ; Paxton's 

/6. 210; Warxfield v. Gcnnbrill, 1 Gill Sf Johns. 503. The com- 
plainant is entitled to an answer to ever}' fact charged in the bill, tlie 
admission or proof of which is material to the relief sought, or neces- 
sary to substantiate .his proceedings and make them regular. As a / 
general rule, if the charge in the bill embraces several particulars, the / 
answer should be in the disjunctive, den3ing each particular or admitting i 
some and denying the others, according to the fact. Davis v. Mapes, 
2 Paige's C. R. 105; Utica Ins. Co. v. Lynch., supra. 

A defendant must give a full, frank and explicit disclosure of all 
matters material or necessary to be answered, whether resting within 
bis own knowledge or upon his information and belief. Baggol v. 
Henri/, 1 Edwards' V. C. R. 7. 

Wliere suspicious circumstances, gross fraud and collusion are 
charged in a bill, a defendant will be held to a strict rule in answering. 
Not only his motives, but his secret designs, his '' unuttered thoughts" 
must be exposed. Mechanic's Bank v. Leity, lb. 3 16. 

It is improper to incorporate in an answer to an amended bill, the 
whole matter of the former answer. Bennington Iron Co. v. Camp- 
bell, 2 Paige's C. R. ICO. No particular form of words is necessary 
in an answer. It is sufficient if it be not evasive, and if the substance 
is preserved. Ulica Ins. Co. v. Lynch, supra. 

The true tests as to whether questions in a bill arc to be answered or 
not, are: 1st, \Vhether the ariswers miglit lend to the crimination of 
the defendant ; and, 2dly, Whether they are relevant and may be ma- 
terial to the case of the complainant. Manl v. Scott, 3 Price, 477. 

(1) Woods v. Morrell. 1 J. C. R. 103. A defendant is not bound to 
answer interrogatories asking a disclosure of matter no way connected 
with or material to the case. Haglhorp v. Hook, 1 Gill 4- Johns. 270 ; 
and see Mechanics' Bank v. Levy, 3 Paige's C. R. 606. 

48 



378 ANSWERS. 

time called upon the defendant to set forth whe- 
ther he had received particular sums of money 
specified in the hill, with many circumstances re- 
specting the times when, and of whom, and on what 
accounts such sums had been received, it was de- 
termined, that setting forth a general account by 
way of schedule to the answer, and referring to it 
as containing a full account of all sums of money 
received by the defendant, was not sufficient, and 
the plaintiff having excepted to the answer on this 
ground, the exception was allowed ; the court being 
of opinion that the defendant was bound to answer 
specifically to the specific charges in the bill, and 
that it was not sufficient for him to say generally, 
that he had in the schedule set forth an account of 
all sums received by him(^). 

Although the defendant by his answer denies 
the title of the plaintift^, yet in many cases he must 
make a discovery prayed by the bill, though not 
material to the plaintiff's title, and though the 
plaintiff, if he has no title, can have no benefit 
from the discovery. As if a bill is filed for tithes, 
praying a discovery of the quantity of land in the 
defendant's possession, and of the value of the 
tithes, though the defendant insists upon a modus, 

or upon an exemption from payment of 
[*311] *tithes, or absolutely denies the plaintiff's 

title(r), he must yet answer to the quantity 
of land and value of the tithes(s). Or if a bill is 
filed against an executor by a creditor of the tes- 

(9) Hepburn V. Durand, 20th (r) See, however, Gilb. Ca. in 

Nov. 1779, in Chan. S. C. rep. 1 Cha. 229. 

Bro. C. C. 503; but see White v. is) Lavgham v. , Hardr. 130. 

Williams, 8 Yes. 193. 



ANSWERS. 379 

lator, the executor must admit assets, or set forth 
an account, though he denies the debt(<). 

But where the defendant sets up a title in him- 
self, apparently good, and which the plaintiff' must 
remove to found his own title, the defendant is not 
generally compelled to make any discovery not 
material to the trial of the question of title. Thus 
where a testator devised his real estate to his ne- 
phew for life, with remainder to his first and other 
sons in tail, with reversion to his right heirs, and 
made his nephew executor and residuary legatee 
of his will, and on the death of the nephew his son 
entered as tenant in tail under the will ; upon a bill 
filed by the heir at law of the testator, insisting 
that the son was illegitimate, that the limitations in 
the will were therefore spent, and the plaintiff be- 
came entitled, as heir to the real estate, and pray- 
ing an account of the personal estate, and appli- 
cation in discharge of debts and encumbrances on 
the real estate, the defendants against whom the 
account was sought insisted on the title of the son 
as tenant in tail under the will, and that they were 
not bound to discover the personal estate until the 
plaintiff' had established his title. Excep- 
tions *having been taken to the answer, [*312] 
and allowed by the master, on exception 
to his report, the exceptions to the answer were 
overruled ; the court distinguishing this case, which 
showed R prima facie title in the defendant, the 
son of the nephew, from a mere denial of the plain- 
tiff"s title(?0- 

(0 Randal v. Head, Hardr. 188. (u) Gethin v. Gale, 20 Oct. 1739, 
See Sweet v. Young, Ambl. 353; 11 in Chan. M. R. Ainbl. 354, titcd in 
Vcs. 304. Sicest v. Youn-g. See als» Gunn v. 



380 ANSWERS. 

So when a bill claimed the tithe of rabbits on an 
alleged custom, and the defendant denied the cus- 
tom, it was determined that the defendant was not 
bound to set forth an account of the rabbits alleged 
to be tithable(.r); a.nd a like determination was 
made upon a claim of wharfage, against common 
right, the title not having been established at law 

But where a discovery is in any degree connect- 
ed with the title, it should seem that a defendant 
cannot protect himself by answer from making 
the discovery ; and in the case of an account re- 
quired, wholly independent of the title, the court 
hao declined laying down any general rule(2;), de- 
ciding ordinarily upon the circumstances of the 
particular case. Thus, to a bill stating a partner- 
ship, and seeking an account of transactions of the 
alleged partnership, the defendant by his answer 
denied the partnership, and declined setting forth 
the account required, insisting that the plaintiff 
was only his servant; and the court, con- 
r*313] ceiving *the account sought not to be ma- 
terial to the title, overruled exceptions to 
the answer, for not setting forth the account(«). 

Prior, cited 11 Ves. Jr. 291. S. C. 16 Nov. 1791. S. C. rrp. 3 Bro. C. 

Dick. 057 ; 1 Cox R. 197. C. 487, note ; and 2 Cox R. 282. 

(.r) Randal v. Head, Hardr. 188 ; See Hall v. Noyes, 3 Bro. C. C. 483. 

S. C. 1 Eq. Ca. Ab. 35. Marquis of Donncgal v. Stewart, 3 

(y) Northlcigh v. Luscombe, Ambl. Ves, 446 ; Pheli-ps v. Caney, 4 Ves. 

612. 107; !i Ves. 42. 293; Webster v. 

(2) Hall V. Noycs, Ld. Chan. 13 Thrdfull, 2 Sim. & Stu. 190; Imt 

March, 1792. .see- \. Harrison, 4 JSladd. 253 

(a) Jacobs v. Goodman, in Exch. (1). 



(1) Tlie principle, that a defendant who denies some substantial 
leading fact, which, if admitted, would entitle the complainant to relief, 
end who cannot be compelled to answer furilier until the truth of the 



7 t/cry^"*-^ cx^c^c^^cu^e^tJ (H-^^.^^ c- ^ 



z 



•ANSWERS 38 1 



And where a plea has been ordered to stand for an 
answer, with Hberty to except to it as an insuffi- 
cient answer, the court has sometimes hmited the 
power of excepting, so as to protect the defend- 
ant from setting forth accounts not material to the 
plaintiffs title, where that title has been very 
doubtful(6). 

If an answer goes out of the bill to state some 
matter not material to the defendant's case, it 
will be deemed impertinent, and the matter, upon 
application to the court, will be expunged(c). So 
in an answer, as in a bill, if any thing scandalous 
is inserted the scandal will be expunged by order 

(6) Earl of Stafford V. Blakeway. 6 217 ; Nor^cay v. Howe, 1 JVIeriv. 347; 

Bro. P. C. 630 ; Toml. ed. King- v. French v. Jacko, ibid. 357, note. 

Hulcombc, 4 B\o. C. C 43!); Bayley Beaumont v. Beaumont, 5 Madd. 

V. Adams, G Ves. 58G. 51. Parker v. Fairiic, I Sim. & Stu. 

(c) Alsagcr v. Johnson, 4 Ves. 295. 2 Sim. & Slu. 193(1). 



fact is disposed of, applies only to a case of an account of partnership 
transactions. And even tliere, a general denial of the partnership will 
not avail, if the bill charges that it would appear by a discovery from 
the defendant. Dcsplacesv. Goris, 1 Edwards' V. C, R. 330; and see 
notes at pp. 308, 309, ante. 

(1) Wat^slaffv. Bryant, \ Russ.Sf M.2Q. Impertinence in plead, 
ing consists in setting forth what is not necessary to be set forth : as, 
stuffing tlie pleadings with useless recitals and long digressions about 
immaterial matters. Hood v. Jnman,4 J. C. R. 437. It was said by 
Chancellor Kent, in JFoods v. M)rrell, 1 J. C R. 103, that perhaps 
the best rule to ascertain whether matter be impertinent, is to see 
whether the subject of the allegation could be put in issue or be given 
in evidence between the parlies. Cut this definition is, perhaps, hardly 
broad enough — for tliere are by-matters alTtcting the costs, fcc, wiiich 
might not be legitimately put in issue, or be made proof of as to the di- 
rect mailer in controversy. 

Chancellor Walworth, in a laic (MS.) case, and since the last sen- 
teucc \\i,ki> writlon, ha-s more clearly and fully defined what may be im- 
pertinent by showing what is not so. " If the matter of an answer is 



" relevant, that is if it can have any influence whatever in the decision 



" of the suit eUher as to the subject-matter of the controversy, the pnrticu' / 



"K 



% 



382 ANSWERS. 

of the conrii^d). But, as in a bill, nothing relevant 
will be deemed scandalous(c). 

(d) Peck V. Peck, Mosply, 45; v. Sax6y, 3 Swanst. 232, n. 
Sinith V. ReynohU-, Mosely, 69. Orel. (e) Mosely, 70. 1 Ball & B. 61 ; 

in Cha.. 25 ; vx\. Bea. Corbett v. Tot- and see Lord St. John v. hady St. 

tenham, 1 Ball & Bea. Gl ; Barnes John, 11 Ves. 52G. 

" lar relief to be given, or as to the costs, it is not imperliaent." Van 
Rensselaer v. Brice, 6 August, 1833. 

Long recitals, stories, couversatious and insinuations tending to scan- 
dal are impertinent. IFoods V. Morrell, supra. Counsel are to take 
care tliat a pleading " be not stuffed with repetition of deeds, writings 
" or records, in hcec verba ; but the effect and substance of so much of 
^ /t^^ «r--^ -t" them only as is pertinent and material to be set down ; and that in 
/ <J /^ " brief terms, without long and needless traverses of points not traversa- 
" ble, tautologies, multiplication of words or other imperlinencies occa- 
«' sioning needless prolixifj'." Lord Coventry's order, Beames, 165; 
Slack V. Evans, 7 Price, 278. And see cases of impertinence given 
and illustrated, 1 Montague on Pleading, 200. An amended bill is not 
prolix, if it is a complete record, and contains all the charges in the 
original bill. Fitzpalrick v. Power, 1 Hogan's R. 24. The case of 
Willis V. Evans, 2 Ball Sf Beattij, 225, is not to be followed, lb. A 
short sentence is not impertinent, although it contains no fact or mate- 
rial matter, and may be only inserted in an answer from abundant cau- 
V / tion. A statement in an answer introduced to show the temper with 
y which a bill is filed, and the oppressive course pursued by a complainant, 
- is not impertinent : it may have an effect upon the costs. Whatever is 

called for by the bill or will be material to the defence, with reference 
to the Older or decree which may be made, is proper to be retained in an 
answer. Des])laces v. Goris, 1 Edwards' V. C. R. 350 ; Monroy v. 
Monroy, lb. 383: Bally v. Williams, I Jl-Cleland & Young, 334. If 
a bill agaiust executors calls specifically and particularlj' for accounts 
in all their various details, a very voluminous schedule, containing a 
copy from the books of account, specifyiqg each item of debit and 
credit, will not be impertinent. It seems, it would have been imperti- 
nent, if the bill had not thus called for it. Scudder v. Bogert. 1 Ed- 
wards' V. C. R. 372. And see The King \. Te.ale, 7 Price, 278. Copies 
of receipts taken by the defendants, for moneys paid and charged ia 
account and making an immense schedule to an answer are impertinent. 
Scudder v. Bogert, supra. An exception for impertinence must be 
supported in <o<o, and if it include any passage which is not impertinent, 
it must fail altogether. Wagstaff v. Bryan, 1 Russ. & M. 30 ; re- 
cognised by Chancellor Walworth, in Van Rensselaer v. Brice, MS. 6 
August, 1833. 



ANSWERS. 383 

2. An answer usually begins by a re- 
servation to *the defendant of ail advan- [*314] 
tage wliich may be taken by exception to 
the bill, a form which has probably been intended 
to prevent a conclusion that the defendant, having 
submitted to answer the bill, admitted every thing 
which by his answer he did not expressly contro- 
vert, and especially such matters as he might have 
objected to by demurrer or plea. The answers to 
the several matters contained in the bill, together 
with such additional matter as may be necessary 
for the defendant to show to the court, either to 
qualify or add to the case made by the bill, or to 
state a new case on his own behalf, next follow, with 
a general denial of that combination which is 
usually charged in a bill(/). It is the universal 
practice to add by way of conclusion a general 
traverse or denial of all the matters in the bill. 
This is said(o-) to have' obtained when the practice 
was for the defendant merely to set forth his case, 
without answering every clause of the bill. 
Though, perhaps, rather impertinent if the bill is 
otherwise fully answered, and it has been deter- 
mined to be in that case unnecessary(/«), it is still 
continued in practice(2). In the case of an infant 

(/) See above, p. 40(1). (g) 2 P. Wnis. 87. 

(/i) 2 P. Wms. 87. 

(1) A defendant cannot avail himself of matter of defence wbich 
appears only upon his evidence and was not stated in Lis answer. 
Stanley v. Robinson, I Russ. & M. 527. 

(2) The general denial of all the matters of the bill not before an- 
swered, with which an answer usually concludes, is sufficient as a 
pleading to put the several matters of the bill in issue. Chancellor 
Walworth, in Stafford v. Brown, MS. 2 April, 1833; and see Slorrm 
V. Storms, 1 Edwards' V. C. R. 358. 



384 



ANSWERS. 



the answer is expressed to be made by his guaf- 
dian(^) ; and the general saving at the beginning, 
together witii the denial of combination, and the 
traverse at tlie conclusion, common to all other 
answers, are omitted. For an infant is entitled to 
the benefit of every exception which can 
[*315] be taken to a bill, ^without expressly mak- 
ing it; he is considered as inrppahlo of 
the combination charged in the bill ; and his an- 
swer cannot be excepted to for insufficiency(^). 
The answer of an idiot or lunatic is expressed to 
be made by his committee as his guardian, or by 
the person appointed his guardian by the court to 
defend the suit(/). An answer must be signed by 
counsel(A^), unless taken by commissioners in the 
country under the authority of a commission issued 
for the purpose ; in which case the signature by 
counsel is not required(Z), the commissioners being 
responsible for the propriety of its contents, as it 
is supposed to be taken by them from the mouth 
of the defendant, which in fact was formerly 
done(m). 

3. If a plaintiff conceives an answer to be insuf- 
ficient to the charges contained in the bill he may 
take exceptions to it, stating such parts of the bill 
as he conceives are not answered, and praying 
that the defendant may in such respects put in a 

(g-) See above, p. 103. General, Exchequer, 30 June 1813. 

(A) Copcland v. IMieclcr, 4 Bro. (i) See above, p. 103. 

C. C. 25G; Lucas v. Lucas, 13 Vcs. {k) 2 Ves. & B. 358. 

274 ; I Ball & Bca. 553. It has been (/) 3 Atk. 440. 

determined also that the answer of (m) See .Brown v. .Brwce, 2 Mori v. 

the attorney general cannot be ex- 1. 
cepted to. Davison v. Attorney 



ANSWERS. 385 

full answer to the bill(w)(l). These exceptions 
must be signed by counsel(o), and a»'e then deli- 
vered to tlie propel* officer, which must be 
done within a limited time, *according to [*310] 
the course of the court(j9), though upon 
application further time is allowed for the purpose, 
within certain restrictions(^). If the defendant 
conceives his answer to be sufficient, or for any 
other reason does not submit to answer the matters 
contained in the exceptions, one of the masters of 

(n) See Marsh v. Hunter. 3 Madd. R. 2-23. 

437, and the cases tliore rolVrrcd to, (p) 3 Atk. l9 ; Thomas v. LUwet- 

iti note. Hor/gson v. Butterjicld, 2 lyn. (J Yes 823. 

Sim. & Stu. 236. (9) Anon. 3 Atk. 19 ; 14 Ves, 

(0) Candler v. Partington, 6 53(i ; Baring v, Prinsep, 1 Madd. 
Madd. 102 ; Yates v. Hardy, 1 Jac. 526. 

(1) Exceptions to an answer cannot be .sustained, unless tlieie \a 
some mnterinl nllegnlinn, charge or inter rogal or 7j contained in the billf 
wliicli lias not been fully answered. And where new matter, not respon-" 
sive to the bill, is stated in the answer, if such new matter is wholly 
irrelevant and forms no sufEcient ground of defence, the comijlain- 
ant may except to the answer for impertinence, or may raise the objec- 
tion at the hearing. This extract is taken from the opinion of Chan- 
cellor Walworth, in the case of Stafford v. Brown, MS. 2 April, 1833 ', 
and his honor, in that opinion, still further shows, by referring to 
jyf/ford, 315. Coopers PI. 319, 1 JSTew land's P. 259, sod Lube's Equity 
Pi. 87, \\o\v the exception must have reference to some part of the bill. 
Allhougli it may not be necessary, in the exceptions, to state the precise 
words of the allegation, charge or interrogatory in the bill which is not 
fully answered, jet the substance, at least, must be stated i so that, by 
reference to the bill alone, in connection with the exception, the court 
may see that the particular matters as to which a further answer is 
sought are stated in the bill or that such answer is called for by the in- 
terrogatories. Per Ch. Walworth, in the same case, referring to Hodg' 
son V. Bntterfield, 2 Sim. & Stu. 236. Material and necessary matter 
must be explicitly met in an answer : but exceptions, founded upoa 
verbal criticism, slight defect and omission of immaterial matter, will 
be invariably disallowed and treated as vexatious. Bnggott v. Henry, 
1 Edwards' V. C. R. 7. See a reference to the New- York Kules 
which relate to exceptions, in note at page 308, ante. 

49 



386 



ANSWERS. 



the court is directed to look into the bill, the an- 
swer and the exceptions, and to certify whether 
the answer is sufficient in the points excepted to 
or uot(q). If the master reports the answer insuf- 
ficient in any of the points excepted to, the defend- 
ant must answer again to those parts of the bill in 
which the master conceives the answer to be in- 
sufficient ; unless by excepting to the master's re- 
port he brings the matter before the court, and 
there obtains a different judgment(r). But if the 
defendant has insisted on any matter as a reason 
for not answering, though he does not except to 
the master's report, yet he is not absolutely pre- 
cluded from insisting on the same matter 
[*317] *in a second answer (.9), and taking the 
opinion of the court whether he ought to 
be compelled to answer further to that point or 
not(/). 

Where a defendant pleads or demurs to any 
part of the discovery sought by a bill, and answers 
likewise, if the plaintiff takes exceptions to the an- 
swer before the plea or demurrer has been argued, 
he aduiits the plea(«) or demurrcr(.r) to be good; 
for unless he admits it to be good, it is impossible 
to determine whether the answer is sufficient or 

(q) OrJ. in Cha. 53; ed. Pea. v. i^mc/j. 2 Ves. 491 ; 11 Vcs. 577. 

Partridge V. Haijcroft, II Yi'i'.blO; (s) Finch v. n7ich, 2 Vcs. 4!)1 ; 

1 1 Vcs. 577 ; 1 Vis. & B. 333. As Sec Ovty v. Leighton, 2 Sim. & Stu. 

to the ricrht of the masters to e.\crci.se 236. 

a discretion vviili rcg^ird to i!ic mate- {t) As to the practice in case the 

riality of interrogatories not answer- defendant should put in successively 

ed, sec Agar v. Regent's Canal as many as four insufficient answers, 

Comp. Coop. R. 212, Hint v. fierce, sec Farquharson v. Balfour, 1 Turn. 

4 l^ri. Ex.R. 331). Scottw Machiatu^h, R. 184. 

1 Ves. & B. 503 ; Amhurst v. Kvng, 2 (u) See Darnell v. Revny, 1 Vern. 

Sim. &Sln. 183. 344. •' •" 

(r) Anon. 3 Atk. 235 ; Ilumhi/ v. (a-) gge Boyd v. Mills, 13 Ves, 

Pemberton,mos. 57; WorllUngton 85. 
V. Foxhall, 3 Barnard. 261 ; Finch 



ANSWERS. 387 

not. But if the plea or demurrer is only to the re- 
lief prayed hy tiie 1)111, and not to any part of the 
discovery, the plaintilf may take exceptions to the 
answer before the plea or demurrer is argued(f/). 
If a plea or demurrer is accompanied by an answer 
to any part of the bill, even a denial of combhiation 
merely, and the plea or demurrer is overruled, the 
plaintift" must except to the answer as insufficient 
(z). But if a plea or demurrer is filed without 
any answer, and is overruled, the plaintiff need 
not take exceptions, and the defendant must an- 
swer the whole bill as if no defence had been made 
to it(«). 

*A further answer is in every respect [*318] 
similar to, and indeed is considered as 
forming part of, the first answer. So an answer to 
an amended bill is considered as part of the answer 
to the original bili(6). Therefore if the defendant 
in a further answer, or an answer to an amended 
bill, repeats any thing contained in a former an- 
5wer(6'), the repetition, unless it varies the defence 
in point of substance, or is otherwise necessary or 
expedient, will be considered as impertinent(<^) ; 
and if upon reference to a master such parts of 
the answer are reported to be impertinent, they 
will be struck out as such, with costs, which in 

(y) 3 P. Wms. 307. Note S. See, Swan<;t. 191, note (a), and overru- 

howi;ver,2 Alk. 3:)0. ling Grijjilli v. Wood, 1 Ves. vt Bca. 

(-') Cotes V. Turner, Bunb. 123. 511. 

(a) Ibid. As to the practice with (6) 3 Atk. 303 ; Dick. 583 ; Spur- 

refereiicc to the obtaininij of time to ricr v. Fitzgerald, G Ves. 548 ; and 

answer in such a case, src Trim v. see, Ocey v. Lighten, 2 Sim. & Stu. 

Baker., 1 Siin. & Stu. 4(i9, S. C. on 231. 

appeal, 1 Turn. R. 253, in accordance (c) Smith v. Serl.c, 1-4 Ves. 415. 
with Junes v. Sa.vbi/, mentioned 1 ((/) 3 Atk. 303(1). 

(1) Benninglon Iron Co. v. Campbell, 2 Pnig/j's C, R. 100. 



388 ANSWERS. 

strictness are to be paid by the counsel who signed 
the answer(c). 

4. A defendant may disclaim all right or title to 
the matter in demand by the plaintift"'s bill, or by 
any part of it(y*). But a disclaimer cannot often 
be put in alone. For if the defendant has been 
made a party by mistake, having at the time no 
interest in the matter in question, yet as he may 
have had an interest which he may have parted 

with, the plaintiff may require an answer 
[*319] sufficient *to ascertain whether that is the 

fact or not ; and, if the defendant has had 
an interest which he has parted with, an answer 
may be also necessary to enable the plaintiff to 
make the proper party, instead of the defendant 
disclaiming(l). The form of a disclaimer alone 
seems to be simply an assertion that the defendant 
disclaims all right and title to the matter in de- 
mand, and in some instances, from the nature of 
the case, this may perhaps be sufficient; but the 
forms given in tlie books of practice are all of an 
answer and disclaimer(2). 

(e) On], in Cha. 1G7. ed. Bea. 16 Gary R. G9 ; Seton v. Slade, 7 Ves. 
Ves. 234. 265. 

( /) See Archbold v. Borrold, 

(1) A defendant cannot, by disclaimer, deprive the comfjlainanl of 
the lig'.it of requiring a full answer from liim, unless it is evident that 
the defendant ought not, after such disclnimer, to be retained as a parly 
to the suit. GUusinglon v. Tliwniles, 2 Riiss. 450. And a defendant 
cannot get rid of the effect of his disclaimer, except upon a distinct 
application, supported by affidavits establishing special ground. Sidden 
V. Lediard, 1 Ru.is. k M. 111. 

• (2) Though a disclaimer is in substance distinct from an answer, yet 
it generally adopts in most respects the formal parts of an answer, the 
words of course preceding and concluding an answer being used in a 
disclaimer. Cnoprr, 3 ! 1 . 



AJMSWERS. 389 

If the defendant disclaims, the court will in ge- 
neral dismiss the bill as against him with costs. 
But it has been said, that if the plaintiff shows a 
probable cause for exhibiting the bill, he may pray 
a decree against the defendant, upon the ground 
of the disclaimer(/i). Where the defendant dis- 
claims the plaintiff ought not to reply(/). 

A defendant may demur to one part of the bill, 
plead to another, answer to another, and disclaim 
as to another. But all these defences must clearly 
refer to separate and distinct parts of the bill. For 
the defendant cannot plead to that part to which 
he has already demurred ; neither can he answer 
to any part to which he has either demurred or 
pleaded(A:) ; the demurrer demanding the judgment 
of the court whether he shall make any answer, 
and the plea whether he shall make any 
other answer than what *is contained in [*320] 
the plea. Nor can the defendant by an- 
swer claim what by disclaimer he has declared he 
has no right to(l). A plea(m) or answer(^?) will 
therefore overrule a demurrer, and an answer(o) 

(h) Prac. Reg. 175. Wy. Pil. case, Gilb. For. Rom. 59. 

(i) Prac. Reg. 176. Wy.ed. 3 Atk. (n) Abraham v. Dodgson, 2 Atk. 

682. 157 ; 3 P. Wms. 81 ; Sherwood v. 

{k) 2 Bro. Pari. Ca. 20, 21(1). Clack, 9 Pri. Ex. R. 259(2). 

(Z1 See the case of (Se^on V. ,S7ac7e, (o) Pierce v. Johns, Bunb. 11; 

7 Ves. 265. Cotlington v. Fletcher, 2 Atk. 155 ; 

{m) Dormer v. Fortescue, 2 Atk. 3 P. Wins. 81 ; Dobbyn v. Barker; 

§82; 3 P. Wms. 80, 81 ; Arnold's 5 Bro. P. C. 573, Toiul. cd. Earl of 



(1) Clark V. Phelps, & J. C. R. 214, In mortgage cases, within 
the court of chancery of the State of New-York, where a defendant 
has written notice of the suit and appears and disclaims, he shall not 
recover costs, but shall pay costs to the complainant. 123(1 Rule ; 
and, in connection, see Rule 132. 

(2) Bolton V. Gardner, 3 Paige's C. R. 273. 



390 ANSWERS. 

a* plea; and if a disclaimer and answer are incon- 
sistent, the matter will be taken most strongly 
against the defendant upon the disclaimer. 

Clanrickard v. Bourke, 6 Bro. P. C. Watkins v. Stone, 2 Sim. & Slu. 
4; Toral. ed.; 1 Sim. &. Slu. G, 5G0, 



*CHAPTER THE THIRD. ^321] 

OF REPLICATIONS AND THEIR CONSEQUENCES. 



A REPLICATION is the plaintiff's answer or reply, 
to the defendant's plea or answer. Formerly, if 
the defendant hy his plea or answer offered new 
mutter the plaintiff replied specially(«) ; otherwise 
the replication was merely a general denial of the 
truth of the plea or answer, and of the sufficiency 
of the matter alleged in it to bar the plaintiff's 
suit, and an assertion of the truth and sufficiency 
of the bill. The consequence of a special repUca- 
tion was a rejoinder, by which the defendant assert- 
ed the truth and sufficiency of his answer, and tra- 
versed every material part of the replication(6). 
If the parties were not then at issue by reason of 
some new matter disclosed in the rejoinder which 
required answer, the plaintiff might surrejoin to 
the rejoinder, and the defendant might in like man- 
ner ad-surrejoin, or rebut, to the surrejoinder(c). 
The inconvenience, delay, and uimeces- 
sary *length of pleading, arising from these [*322] 
various allegations on each side(<Z), occa- 
sioned an alteration in the practice. Special re- 
plications, with all their consequences, are now 

(a) Ord. in Cha. 70, ed. Bea. (c) West. Symb. Clia. 195. a. 

(b) 2 West. Sym. Chan. 195. a. Trac. Reg. 371. Wy. ed. 

33^. b. 346. b, {d) See Ord. in Cha. 70, ed. Bea, 



ti9fi 



REPLICATIONS. 



out of use(e), and the plaintiff is to be relieved ac- 
cording to the form of the bill, whatever new mat- 
ters may have been introduced by the defendant's 
plea or ans\ver(/). But if the plaintiff conceives, 
from any matter offered by the defendant's plea or 
answer, that his bill is not properly adapted to hig 
case, he may obtain leave(o-) to amend the bill(/i), 
and suit it to his case, as he shall be advised(/). 
To this amended bill the defendant may 
[*323] make such *defence as he shall think pro- 
per, whether required by the plaintiff to 
answer it or not(k). 



(c) Prac. Rrg. 37-2; Wy. rd(l). 
Imlfied if a |)lLiintiff is disposed lo 
controvert a part of a case made by 
the defendant's answer, and to admit 
the rest, he may still put in a re|)li- 
cation so fiir special, that it is confin- 
ed to the jiarticidar matter controvert- 
ed, instead of heing a general denial 
of the truth of the v^holo answer ; 
and then the defendant is put only to 
proof of the matter replied to. 

(/) Prac. Reg. 372. Wy. cd. 

(§■) See 1 Ves. Jr. 448. 

(A) And this will be permitted 
after replication ; atid leave will be 
granted to the plaintiff to withdraw re- 
j)licatiun and an)end the bill(2). See 
Pott V. Reynvlds, 3 A Ik. 565 ; Pitt v. 
Watts, 16 Ves. 1-26 ; Cowdtll v. 
Tatlock, 3 Ves. & B. 19; Lord 



Kilcourcy v. Ley, 4 Madd. 212. 

(i) As to the extent lo which this 
liberty may be carried, see 2 Sch. & 
Lefr. 9 ; Seeley v. Boehm, 2 Madd. 
R. 17G; Mazzaredo v. Mailland, 3 
Madd. 6G(3). As to the consequence 
of making an entirely new case by 
the amendment, see Alavor v. Dry, 
2 Sim. &. Stu. 118(4). And as to 
the adding or striking out a prayer for 
relief, see Butteruorth v. Bailey, 15 
Ves. 358 ; Earl of Cholmondeley v. 
Lord Clinton, 2 Ves. & B. 113. But 
it may be observed that the plaintiff 
may not amend his bill after plea to 
part thereof has been allowed, with- 
out leave of the court. Taylor v. 
Shcno, 2Sim. & Stu. 12. 

(A) The original bill is rendered 
nugatory by amendment, 3 Madd. 



(1) Storms V. Storms, 1 Edu-ards' V. C. Rep. 358. No special re- 
plication allowed to be filed in the court of chancery of the Slafe of 
Kew-York witliout leave of the court on cause shown. €>5lh Rule. 

(2) But it will not be permitted, unless the complainant shows the 
materiality of the amendments, and why the matter proposed as aa 
amendment was not before stated in the bill. Brown v. Rickets, 2 J. 
C. R. 425. 

(3) Lyon v. Tallmadi^e, 1 J. C. R. 184; Livingston v. Gibbons, 4 
Jb. 94 ; Thorn v. Germond, lb. 363 ; Beeknian v. Waters, 3 lb. 410; 
Shepherd v. Merrill, lb. 423 ; Renu-ick v. Wilson, G lb. d\. 

(4) Also Pratt v. Bacon, 10 Pickering's R. 123. 



UEPLICATIONS. 



393 



According to the present course of the court, 
although rejoinders are disused, yet the phiintitT, 
after repHcation, must serve upon the defendant a 
subpoena requiring him to ap})ear to rejoin, unless 
he will appear gratis(/V The effect of this process 
is merely to put the cause completely at issue be- 
tween the parties. For now, immediately after 
the defendant has appeared to rejoin gratis, or after 
the return of a subpoena to rejoin served on the de- 
fendant, and which, by order obtained of course 
is now usually made returnable immediately, and 
served on the defendant's clerk in court, the par- 
ties may proceed to the examination of witnesses 
to support the facts alleged by the pleadings on 
each side(m). Where by mistake a replication 
has not been filed, and yet witnesses have been 
examined, the court has permitted the replication 
to be filed nunc pro tunc(n). 



429 ; and if the alteration be so con- 
siderable as, according to the practice 
of the court, to make it necessary 
that a new engrossment siiould be 
filed as of record, counsel's signature 
niust.be affixed thereto. Kirklcy \. 
Burton, 5 Madd. 378 ; Webster v. 
T/irc//a«, 1 Sim. & Stu. 135; Pitt 
V. Macklew, 1 Sim. & Stu. 136. n. 
(i) Anon. Mos. 123. 21)0 ; Flower 



V. Herbert, Dick. 349. 

(?n) Mosely, 21!6 ; Prac. Rrg. 371 ; 
Wy. ed. It may be noticed that leave 
will in some instances be given to 
withdraw a rejoinder and rejoin de 
novo. See Berks v. M ig^ar,, 1 Ves. 
&B. 221; Brickicood v. Miller, 1 
Meriv. 4. 

(?i) Rodney v. Hare, Mosely, 29G- 



50 



[*324] ^CHAPTER THE FOURTH. 



OF INCIDENTS TO PLEADINGS IN GENERAL. 






In the preceding chapters have been considered 
the nature of the pleadings used in the equitable 
jurisdiction of the court of chancery, and the man- 
ner in which they are brought to a termination. 
Before the proceedings arrive at that point the 
court will frequently permit the pleadings filed to 
be altered, as the purposes of parties may require 
(rt), except in the case of answers put in upon 
oath, in which the court, for obvious reasons, will 
not easily suffer any change to be made(6). 



(a) As to Ihe amendment of bills, 
see above, pp. 55. 322 : of demurrers, 
Glegg V. LeghA Madd. 208 ; Thorpe 
V. Macaulay, 5 Madd. 218, and above, 
p. 214 ; and of pleas, Dobson v. 
Leadbeater, 13 Ves. 230; J/er- 
rewethcr v. Mcllish, 13 Ves. 435 ; 
Wood V. Strickland, 2 Ves. & B. 
150 ; Thompson v. yi'ild, 5 Madd. 

{b) A special apfilication is neces- 
sary for the purpose, 4 Madd. 27, 
and the court will not as formerly, 
(see 3 Barn. 51, 2 Eq. Ca. Ab. 60, 
Wharton v. Wharton, 2 Atk. 294, 
Daglij V. Crump, Dick. 35, Bedford 
V. Wharton, Dick. 84, Patterson v. 
Slaughter. AmhI. 21)2; and cases 
cited, 1 Ves. & B. 150, note (a), 10 
Ves. 285. 401.) v.nc leave to anii'nd 
the answer itself, except in the case 
of an infant dcf.ndaiit, {Savage v. 
Carroll, 1 Ball &. B. 548.) and e.x- 
cept in cases of mere clerical error, 
(^Griffiths V. Wood, ll Ves. 02, 



Peacock v. Duke of Bedford, 1 Ves. 
& B. 186, White V. Godbuld, 1 Madd. 
R. 269, FaircJoth v. Webb, 5 Maddr°S 
73, but see liidley v. Obee, WijrIitw. \ 
32,) bnt upon its conscience being i 
satisfied that the defendant ought not / 
to be concluded by the answer as upon 
record, ( 10 Ves. 401, 4 Madd. 27, and 
see Tennant v. Wilsmore, 2 Ansfr. 
302 ) if the matter already brought 
forward be ambiguously stated, and it 
appear that the defendant meant to / 
swear to it in the sense which he / 
seeks u[ion his application to [lut up- ,' 
on it, (Livcsey v. Wilson, 1 Ves. & , 
B. 14'J,) or if it be desired to intro- \ 
duce new matter, and it appear that \ 
the defendant, at the time of putting \ 
in the original answer, was not aware.J 
thereof. {Wells v. Wood, 10 Ves. 
401,) it Will permit a supplemental 
answer to be filed, {Jen/iings v. 
Merton College. 8 Ves. VJ, 10 Ves. 
285, li) Ves. 584, Curling v. Mar- 
quis Townshend, I'J Ves. 628, 



! 



(1) Jackson r- Rowe, 4 Russ. 588. 



INCIDENTS TO PLEADINGS^ 395 

*After the examination of witnesses(c) no [*325] 
pait of the pleadings can be altered or ad- 
ded to, but under very special circumstances, or 
in consequejice of some subsequent event, except, 
that if the plaintiff at any time discovers that he 
has not made proper parties to his bill, he may ob- 
tain leave to amend his bill for the special purpose 
of adding the necessary parties(^) ; and leave has 
also been given to amend the prayer under 
particular *circumstances(^). If any event [*326] 
happens which alters the interest of any 
party, or gives any new interest to any person not 
a party, the plaintiff may file a supplemental bill, 
or bill of revivor, as the occasion may require. 
And if the plaintiff thinks some discovery from the 
defendant, which he has not obtained, is necessary 
to support his case, he may file a supplemental bill 
to obtain that discovery( /*). He may also file a 
supplemental bill to put in issue any matter ne- 
cessary to his case when he cannot obtain permis- 
sion to alter his original bill by amendment; but 
he cannot upon such a supplemental bill examine 

Strange v. Collins, 2 Ves. & B. IfiS, 2 Frrem. 172 ; Alullins v. Simmonds^ 

Edwards v. M'Leay, 2 Vfs. &.. B. Buiib. 1S6 ; Kingscute v. Bainsby, 

25G, 4 Mndd, 407,) as a mode by Dick. 485 ; Tennant v. Wilsmore, 

whicli justice may be more surely ad- Anstr. 3G2. 

miiiistered, 19 Ves. 631. (d) Anon. 2 Atk. 15 ; Goodwinv. 

(e) As to lulls, see Wright v. Goodwin, 3 Atk. 370; 1 Prax. Aim, 

Howard, G Madd. 106, and above, p. Cur. Cane. 546. See above, pp. 55, 

55. Where no witness has been ex- 322(1). 

aminrd, an amendment lias been )icr- (e) Cook v. Martin, 2 Atk. 2 ; 

niitted after publicilion [)assed. Has- Harding v. Cox, 3 Atk. 583 ; Palk 

tings V. Gregory, in the Excheq. v. Lord Clinton, 12 Ves. Jr. 48. 

lIHh Nov. 1782. 1 Fowl. Excheq. Pr. (/) Boere v. Skipwith, 2 Ch. 

127; Sanderson v. Thwaitea, in Rep. 142; Goodwin v. Goodwin, 3 

Chan. Trin. 1782. With respect to Atk. 371 ; Usborne v. Baker, 2 

answers, see Chute v. JLady Dacres, Madd. R. 379. 

(1) But an amendment by adding a party com; lainant is not a mat* 
ter of course. Luclon School v. Scarlet, 13 Price, 51. 



V 



396 INCIDENTS TO PLEADINGS. 

witnesses to any matter in issue by the original 

bill(o-). 

If upon hearing the cause the plaintiff appears 
entitled to relief, but the case made by the bill is 
insufficient to ground a complete decree, the court 
will sometimes give the plaintiff leave to file a sup- 
plemental bill, to bring the necessary matter, in 
addition to the case made by the orginal bill, before 
the court(/i). If the addition of parties only is 
wanted(/), an order is usally made for the cause 
to stand over, with liberty to amend the bill by 
adding the proper parties; and in some cases 
where a matter has not been put in issue by a bill 
with sufficient precision, the court has, upon 
hearing the cause, given the plaintiff 
[*327] ^liberty to amend the bill for the purpose 
of making the necessary alteration(fc)(l). 
The court considering infants as particularly 
under its protection, will not permit an infant plain- 
tiff to be injured by the manner in which his bill has 
been framed. Therefore, where a bill filed on be- 
half of an infant submitted to pay off a mortgage, 
and upon hearing the cause the court was of opi- 
nion that the infant was not bound to pay the mort- 

{g') Bagenal v. Bagenal, G Bro. G40 ; Toml. ed. As to practice in 

p. C. Ml ; Toml. ed. case of neglect to amend witliin a 

(h) [i Atk. 133. reasonable time, see Cox v. Ailing* 

(i) See above, pp. 55. 32-2. ham, 3 Madd. 393(2). 
(^•) Filkin V. Hill, 4 Bro. P. C. 

(1) Where there is a clear mistake in an answer, which is proper to 
be corrected, the practice is to permit the defendant to file an addi. 
lional or supplemental answer. But this is allowed with great caution ; 
and only where there is a mistake, properly speakiLg, in a mailer of 
fact, Bowen v. Cross, 4 J. C. R. 375, 

(2) Also Franklin v. Beamish, 1 Hogan, 72. 



INCIDENTS TO PLEADINGS. 397 

gage, it was ordered that the bill should be amend- 
ed by striking out the submissiop(/). And where 
a matter has not been put by the bill properly in 
issue, to the prejudice of the iniant, the court has 
generally ordered the bill to be amended(m). 

A like indulgence has been granted to a defend- 
ant, when upon hearing a cause it has appeared 
that he has not put in issue by his answer facts 
which he ought to have put in issue, and which 
must necessarily be in issue to enable the court to 
determine the merits of the case, the defendant 
being permitted to amend his answer by stating 
those facts. This has formerly been done in the 
Exchequer, where a modus had been set up as a 
defence to a bill for tithes ; and it appeared from 
the evidence in tlie cause that there was probably 
a good ground for opposing the plaintiff's claim, 
though the defendant had mistaken it, and 
the court permitted *him to amend his an- [*328] 
swer(n) ; but this has been refused in other 
cases. Where an answer has been prejudicial to 
a defendant from a mere mistake; upon evidence 
of the mistake an amendment has been permitted 
(o). Tills indulgence has been extended, after 
much consideration, beyond mere mistake, where 
by the answer an important fact was imperfectly 
put in issue, and no witness had been examined, 
the cause being heard on bill and ans\ver(p). In 

(/) 1 p. Wms. 428(1). V. Uill, 4 Bro. P. C. (310; Tonil. cd, 

(jn) See p. 27; Nupier v. Ladt/ 2 Anstr. 443. 

Effingham, 2 P. Wins. 401. 403. (o) Countess of Gainsborough v. 

And see Bennet v. Lcc, 2 Atk. 52'J. Giffurd, 2 V. W lus. 424. 

(?i) Phillips V. Gicijnne, E.xclie- [p) Powell v. hill, in Chan. The 

quer, Easter, 1779. See also Filkin cause came first before the Master of 



(1) Franklin v. Beamish, supra. 



398 INCIDENTS TO PLEADINGS. 

general, however, this indulgence is confined to 
mere mistake or surprise(</)(l). A distinction has 
also been made between the admission of a fact, 
and the admission of a consequence in law or in 
equitj(r). Where a defendant after putting in an 
answer discovered a ground of defence to the bill 
of which he was not before informed, a purchase 
by the person under whom he claimed without 
notice of the plaintiff's title, which could only be 
used by way of defence, and could not be the 
ground of a bill of review, the court allowed 
[*329] the answer to *be taken off the file, and 
the new matter to be added, and the an- 
swer resworn(5). Where a fact which may be of 
advantage to a defendant has happened subsequent 
to his answer, it cannot with propriety be put in 
issue by amending his answer. If this appears to 
the court on the hearing, the proper way seems to 
be to order the cause to stand over till a new bill 

the Rolls, who made an order, giving (q) 2 Bro. C. C. 619. See Chute 

liberty to the plaintiff to amend the v. Lady Dacres, 2 Freem. 173. 

bill, and to the defendant to amend (r) See Pcarce v. Grove, 3 Atk. 

the answer, to which the plaintiff ^22, and S. C. Ambl. 65, but verj 

miffht reply and go to issue. On ap- ditlerentiy stated. 

peal to the chancellor the order was (s) Patterson v. Slaughter, Ambl. 

affirmed, 19th March, 1735. MS. N. 292. As to amending an answer, 

Countess of Gainsborough w.Gifford, and filing a supplemental answer in- 

(since reported 2 P. W"ms. 424.) stead of amending and reswearing 

cited as determined on several prece- the original answer, see above, p. 324, 

dents. But see Sorrell v. Carpenter, note (&). 
2 P. Wms. 482. 



(1) Amendments will not he granted to enable a parly lo set up the 
defence of usury or of the statute of limitations, if he has not availed 
himself of the opportunity to interpose such defence in the first instance. 
Jt seems, however, that where such defences are defectively set forth, an 
amendment will be allowed to give the party the benefit of the defence 
which he intended to present, but he will not be permitted to put in a 
new or additional plea or answer. Beach v. Fulton Bank, on appeal, 
3 Wendell's R. 573 ; S. C. 1 Paige's C. R. 429. 



*»w^. 



INCIDENTS TO PLlSADINGS. 399 

in which the fact can be put in issue be brought to 
a hearing with the original suit(/); and a bill for 
this purpose seems to be in the nature of a plea 
puis darrein conii7iuance at the common law. 

Sometimes upon hearing of a cause, it has ap- 
peared that a matter properly in issue, or at least 
stated in the proceedings, has not been proved 
against parties who have admitted it by their an- 
swers, although not competent so to do for the 
purpose of enabling the court to pronounce a de- 
cree. In these cases the court has permitted the 
proper steps to be taken to obtain the necessary 
proof; and for this purpose has suffered interro- 
gatories to be exhibited(««) ; and w here the plain- 
tiff has neglected to file a necessary replication 
has allowed him to supply the defect(a:). Thus, 
where a bill was filed on behalf of creditors, for 
satisfaction out of real and personal 
estates devised *to trustees for that pur- [*330] 
pose, and, subject to that charge, in strict 
settlement, and the answers of the tenant for life, 
and of the first remainder-man in tail, who was an 
infant, were not replied to, the court on hearing, 
directed that the plaintiff should be at liberty to 
reply to those answers, and exhibit interrogatories, 
and prove their debts against those defendants, as 
they had before proved them against the trustees; 
and reserved the consideration of the directions 
necessary to be given upon such new proof(i/). 

{I) Hayne v. Hayne, 3 Ch. Rep. Afoo7is v. De Bernales, 1 Russ. R. 

19. 301; Abrams v. IMnshup, 1 Ruk.-\ 

(u) See 2 P. Wms. 4G3 ; and sec R. 52G. 

3 P. Wms. -289; Sinith v. Allhus, fx) See above, p. 323. 

llVes. 564; Willan v. U'illan, I'J (y) Lambert v. Ashcroft, at the 

Ves. 590; S. C. Coop. R. 291; Rolls, 18lh Feb. 1779. 
Swirtford V. Home, 5 Macld. 379 ; 



400 INCIDENTS TO PLEADINGS. 

In most of these cases the indulgence given by 
the court is allowed to the mistakes of parties, and 
with a view to save expense. But when injury may 
arise to others the indulgence has been more rarely 
granted ; and so far as the pendency of a suit can 
affect either the parties to it, or strangers, matter 
brought into a bill by amendment will not have 
relation to the time of filing the original bill, but 
the suit will so far be considered as pendent only 
from the time of the amendment(a:), except that 
where a bill seeks a discovery from a defendant, and 
having obtained that discovery, the bill is amended 
by stating the result, it should seem that the suit 
may, according to circumstances, be considered as 
pendent from the filing of the original bill, at least 
as to that defendant, and perhaps to the other par- 
ties, if any, and to strangers also, so far as the 
original bill may have stated matter 
[*331] which might ^include in general terms the 
subject of the amendment. 

Though in general, with respect to the original 
parties, and their interests, no amendment will be 
permitted after the cause is at issue, and witnesses 
have been examined, and publication passed(?/) ; 
yet a plaintifi'has been permitted under such cir- 
cumstances, to amend his bill by adding a prayer 
omitted by mistake(2;). Even upon the hearing, 
as already noticed(a), the court having the whole 

(x) 2 Atk. 218. Turn. R. 24. See above, cases cited, 

(y) Anon. Barn. 222; 2 Anstr. p. 55, note, and pp. 322, 323, notes 

3G2. And see above, p. 32.3, and (i) and (k). 

note. It may be observed, that in (z) Harding v. Cox, 3 Atk. 583. 

such a case the plaintill' niu.st gene- (a) Pp. 326, 327. 329. And here 

rally api)ly to the court for liberty to it may be remarked, that an amend- 

withdraw his rephcation, as well as ment of the bill will be permitted 

to amend his bill. 1 Atk. 51 ; Mot- after a demurrer or a plea has been 

teux V. Mackrcth, 1 Vcs. Jr. 142 ; 1 filed, but generally not, after it has 



INCIDENTS TO PLEADINGS. 401 

case before it, and being embarrassed in its deci- 
sion by defects in tbe [)]eadiM.gs, has perriiitted 
aiTiL'ndments both of bills(6) and answcrs(c), under 
very special circumstances. Where new mutter 
has been discovered by either plaintifFor defendant 
before a decree has been pronounced deciding on 
the rights of the parties, a supp!e:nental or cross- 
bill has been permitted, to bring such matter before 
the court to answer the purposes of justice, 
instead of allowing an amendment *of a [*332"] 
bill or answer, where the nature of the mat- 
ter discovered would admit of its being so brought 
before the court ; and after a decree, upon a simi- 
lar discovery, a bill of review, or a bill in nature of 
a bill of review, has been allowed for the same pur- 
pose, both those forms of proceeding being in their 
nature similar to amendments of bills or answers, 
calculated for the same purposes, and generally 
admitted under similar restrictions. It may how- 
ever happen that by the mistake, or negligence, or 
ignorance, of parties, their rights may be so preju- 
diced by their pleadings that the court cannot per- 
mit important matter to be put in issue by any 
new proceeding without so much hazard of incon- 
venience, that it may be better that the individual 
should suffer an iiijury than that the administration 
of justice should be endangered by allowing such 
proceeding. , \ 

been set down to be argued. Anon. 326, 327. 

Mos. 301 : Vernon v.' Cue, Dick. (c) See Covntess of Gainsbo- 

338; 1 Ves. Jr. 448; Carlcton v. rowg-/i v. fJZ/yrt/, 'J P. Wins. 4-24 ; 1 

L' Estrange, 1 Turn. R. 23. Cox R. i5L>. See above, p. 327. 
(6) See above, p. 55, note (ni), 



INDEX. 



N. B. The original paging has been preserved throughout 
the work, and is the one referred to in the Index(a). 





PAGE. 


56. 60. 


69. 


100 


5 


6, et 


seq. 


- 




60 


. 127, 


128. 


130 


119, 


120. 


123 


- 




274 



ABATEMENT - - - - 

bj what circumstances occasioned 
how suit restored . . . - - 
See Death. Marriage. 
ACCIDENT ... 113. 123. 

ACCOUNT 

may be limital to the time of filing the bill 
stated, see Plea. 

where there is error or fraud in, 259, notes. 263, note 
see Aasicer, 
ACKNOWLEDGMENT 

with reference to the statute of limitations, - 271, 

and notes 
ADDRESS, see Bill. 
ADMINISTRATION 

limited to subiect of suit - - 177 and note, 178 

ADMINISTRATOR. See Plea negative. 
AFFIDAVIT. See De bene esse. Deliver]/. Discovery of 
Deeds or Writings. Execution. Interpleader. Per- 
petuation of Testimony. Relief upon Deeds or Writings. 
Rcvieiv, Bill of. Supplemental Btll in nature of Bill of. 
AGENT, 

principal, in many cases, has aright to discovery from 159 
privity between his vendee and principal - ib. 

notice to, is notice to principal - - 278 

See Interpleader. 
AGREEMENT 

specitic performance of - . - 118 and note, 119 

by parol, effect of part performance - - 266 

(o) But little observation is taken of the American notes in this Index; 
a reference to the general subjects ombraceJ in the text will lead to thenj, 



IN HEX. 

AGJITIEMENT— continued. page. 

bj parol, as to confession of, in answer to bill for specific 

perfonnancc ...... 267 

to refer lo arbitraiion, see Plea. 

not specifically performed, 264 

ALIEN. See Discovery. Persons. Plea. 
ALIENATION, pendente lite, 

eflfecL of, where coinpulsory - - - 64, et seq. 

where volunlary - 73, et seq. and notes 

ALLEGATION, 

as to frame and sufficiency of - - 41, 42 and notes 
See Demurrer. 
AMENDMENT of pleadings generally - - 17,18 

See Answer. Bill. Demvrrer. Infant. Plea. 

ANSWER 14, 15. 102. 106. 306. 

principal end of requiring .... 44 

general nature of - ... - 306 

form of 306.313,314 

•were the proper mode of defence - - - 308 

must not be evasive, but must meet substance of each 

charge 309 

must be particular to particular charges - - 309, 310 

manner in which sufficiency of determined, and deficiency 

supplied .-.-..- 306 

as to materiality of 309 

may be referred for scandal or impertinence 313. 318 

where it must be signed by counsel - ■ - 315 

of a quuker ; of a moravian : or of an infidel, as a jew or a 

mahometan 10, note 

of a trustee, incumbrancer, or heir - - 309, note 
of an infant - - - - - - 314 

of an idiot or lunatic ..... 315 

of a feme covert, see Married Woman. 

of attorney general .... 315 and note 

overrules demurrer ..-..- 320 

plea 299. 320 

where defendant may thereby protect himself from making 

full discovery 307 and note 

discovery enforced by, if connected with plaintiff's 

title 312 

although plaintifFs title denied 

310, 311, 312 

not enforced by, if ground of plaintiff's title be 

denied - - - - - - 312 

if counter title be set up 31 1 
as to discovery independent of plaintiff's title being com- 
pelled - - - 312 

\vh?re defendant sets up modus; denies plaintiff's claim 
without admitting assets; denies custom ; or denies part- 
nership and privity ; and declines to set forth account 

310. 311, 312 



INDEX. 

ANSWER— fon<in«e^. page. 

amendment of, allowed, when 324 note. 325 note 327, 328, 

329 
at hearing - - 327. 331 

supplemental 324, note 

in support of plea, see Pica, and see 239, et seq. 244 and 

note, 245. 298 

in support of plea, may be excepted to - - 299 

accompanjing plea or demurrer, if the latter defence be 

overruled, must be excepted to - - - 317 

read to counterplead plea ... 299. 304 

after plea or demurrer overruled - - 16.306 

further to original bill .... 18.318 

insisting on same matter as first, after exceptions 

thereto allowed - - - 316, 317 note 

to amended bill 318.322. 

as to right of each defendant to file separately, 306, note 
objecting to a bill of revivor - - - 289, 290 

as to such mode of defence to a bill of review - 293 
and disclaimer - - - - * - 319 

See Agreement. Combination. Defendant. Demur- 
rer. Exceptions. Infant. Interrogatories. Plea, 
Statute of Frauds. Time. Trust. 
APPEAL, see Remainder. 
APPEARANCE 

to original bill ...... 45 

to bill of revivor ...... 77 

ARBITRATOR, see Agreement. Demurrer. Plea. 

ASSETS 125. 136 

See Answer. 
ASSIGNMENT without license, see Demurrer to Discovery. 
ASSIGNOR, see Parties. 
ASSIGNEE 

of a party to a decree, bill by - - - 95 

See Demurrer. 
ATTAINDER, see Persons. Plea. 
ATTORNEY, see Plea to Discovery. 
ATTORNEY GENERAL, 22 and note. 99.102. 169 and note. 

See Answer. Croxcn. Defendant. Parties. 
AVERMENTS, see BVl. 
AVERMENTS IN PLEA 

necessary ........ 297 

object of - - .... . . 298 

must be sufficient to support it - - - - ib. 

should in general be positive .... 297 

may be negative 298 

instances, 265 and note. 269. 277 note. 293 
See Plea. 
AWARD. See Plea. 



INDEX. 
B. 

BANKRUPT, PAGE. 

bill by, not slating his bankruptcy - - 282, note 

as to discovery by . - . . 283, note 

how to act where his assignees refuse to institute or to 

prosecute a suit - - . - - 07, noie 

Sec Defendant. Demurrer. Plaintiff. Plea. 

BANKRUPTCY 

does not abate a suit, but merely renders it defective, 
65 note, 66 and note, 67 note, 68 and note 
commission how to be disputed - - 66, note 

BARGAIN AND SALE 

without enrolment - ... - - 116 

BILL IN CHANCERY 

what proper object of ..... 8 

what generally sought by ... - 9 

by whom it mciy be exhibited, see Persons. Plaintiff. 

21c/ seq. 
against whom it may be exhibited, see Defendant. Per- 
sons, and 30 e/ seq. 

must be signed by counsel .... 48 

whence arises variety of . . - - 17 

the several kinds and distinctions of - - 21. 109 

the frame and end of the several kinds of - - 21 

original .....-- 33. 37 

not original ...-.-- 33. 55 
in nature of original - - - ' - " 33 

original, form of ----- " 42 

usually consists of nine parts - - 42 

1. Address - - - ' . .' ^'^'^ 

2. Names and descriptions of plaintiffs, 42 

and note 

3. Stating part - - - 37.41.43 
4 Allegation of confederacy and combination 

40,41.43 
5. Charging part - - - - 43. 47 

6 Averment as to defect of remedy elsewhere, 

43, 44 

7. Interrogating part - - 44,45.47 , . 

8. Prayer for relief, arid discovery - 44, 45 . .*^ ?5 '-^ « 
0. Prayer for process - 37, 38. 45, 46 

original, praying relief - - " ' ol' rl 

not praying relief 34. 51 

praying general decree - - - ^- oi. d/ 

of interpleader, see Interpleader, and - 34. 37. 48. 141 

oravin"- writ of certiorari, see Certiorari, and 9. 34, 
*^ "^ ° 37. 50 

to perpetuate testimony, see Perpetuation, Plea, and 34, 

5 1 ■ 1 48 



INDEX. 

BILL — continued: page. 

for discovery, see Cos/s, Deeds, Discovery and 34. 53. 1 10. 

note (1). 148 
of supplement, see Decree, Demurrer, Supplement, and 

18. 34. 61. 64. 75. 326 
of revivor, see Costs, Creditors, Decree, Dernurrer, Re- 
vivor, and 35. 69. 76. 326 

of revivor and supplement, see Demurrer, Hearing, and 

35.70.80 
cross, see Cross-bill, Hearing, and - - - 35. 80 
of review, see Ansiver, De7nurrer, Hearing, Plea, Re- 
view, and 35. 80. 83 

in nature of bill of review, zcq .Demurrer, Hearing, Re- 
vieiv, and ----- 35. 80. 92 

to impeach a decree on the ground of fraud, see Decree, 
Plea and - - - - 35. 80. 92, 93, 94 

to suspend the operation of a decree - 35 80. 94 

to carry a decree into execution, see Demurrer, Plea, and 

35.80.95 
in nature of bill of revivor, see Distinctioii, and 36. 71. 

80.97 
supplement, see Distinction, Supple- 
ment, and 36. 65. 72. 80. 98 
supplemental in nature of bill of revivor - 68 

review, see Supplemen- 
tal, and - 90 
amendment of, generally, 55 and notes. 207. 290. 324, 

325 and note 
as to prayer - - 322 note. 331 

as to parties - - - 32-5, 326 

as to extent to which liberty may be car- 
ried - 322. 325 and note 
effect in relation to original bill 322, 

323, note 
after plea or demurrer filed 331, note 

upon hearing of demurrer, 215 and note 
after allowance of demurrer for want of 
parties - - - - 181 

after allowance of plea to part thereof, 
not of course - - 322, note 
after liberty to make, given at hearing 326, 

327. 331 

neglect of, practice on 

327, note 

where counsel's signature required to 

323, note 
See Assignee. Customs. De bene esse. Decree. 
Delivery. Examination. Execution. Neiv Trial 
Persons. Quia timet. 



INDEX. 

BONDS • ^PAOE. 

lost 'lis 

BOUNDARIES, 

obliterated 117 

c. 

CANCELLATION OF INSTRUMENTS, 128, 129 note 
CERTIORAR[, 

proceedings upon a bill pnving writ of - - 50 

See Bill. Defence. Plea. 
CESTUI aUE TRUSTS. See Parties. 
CHAMPERTY. See Demurrer to discovery. 
CHANCERY. See Bill. Jurisdiction. 

CHANCELLOR 7 

CHATTELS, SPECIFIC, 

detention of - - - - - - 117 

CHARITY, 

suit on behalf of ..... 7 

' indulgence of Court upon . - - 39 

See Information. Petition. 
CHOSE IN ACTION. ^&q Parties. 
COMBINATION, 

charge of, answer to - - . - - - 4 1 
as to denial of, by answer, upon a demurrer for multifari- 
ousness • - - - - - 181 and note 

after usual order for time 209 

and note, 210 

COMMISSIONERS, LORDS - - - - 7 and note 

COxMMITTEES 

of idiots or lunatics ------ 29 

defend suits brought against them - - 30. 103 

Sg6 Pci /'tics. 

COMMON LAW. See Courts. 
CONTRACTS. See Agreements. 
CONVEYANCE. See P/e«.. 
COPYHOLD, 

as to restraining waste by tenant of - - - 139 
COPYRIGHT, 

as to restraining infringement of - - 138. 147 

there must be a separate bill against each invader 182, 

note 
CORPORATIONS, 

suits by 24 and note 

making officers and agents parties - 10. 103 note (1). 

defence of suits by - - - - - - 103 

aggregate, see Defendant. 
COSTS, 

where awarded against next friend of infant - 26. 27" 

note 



INDEX. 

COSTS— continued. PAOfi. 

where infant on attaining age becomes liable to, 26 and 

note 
where awarded against next friend of married woman 28, 

note 

against relator - 23. 29 note. 100 

where a bill of revivor for, allowed - - - 202 

on bill of discovery - - - - 201 and note 

See Impertinence. Scandal. 
COUNCIL, see Discorery. 
CONFlDliNCE, see Plea to Discovery. 

COUNSEL, as to signature of, see Ansicer. Bill. Demurrer. 
E.Tceptions. Plea. 
bill by, to recover fees, demurrer to allowed - 157 

as to discovery sought from, see Plea to Discovery. 
as to costs by. see Impertinence. Scandal. 
COURTS OF COMMON LAW, 

limited character of jurisdiction - - - - 3 

of Eqr.ily supply defect in administration of justice by the 

courts of common law ... - - 4 

of inferior jurisdiction .... - 151 

CREDITORS, 

suit by or on behalf of - - - - 115. 166. 171 

revivor in a suit on behalf of creditors - 79 and note 

decree in such a suit ----- 166 

cross bill by creditor ----- 83, note 

of a deceased person, have no privity with the debtors to 
his estate - - - - - - - 159 

See Plea. 
CRIMINAL PROSECUTIONS 

not rehpvod against - - - - - -133 

CROSS BILL, 

frame of -------- 81 

considered as a defence, admitting jurisdiction 81, 82 

where now dispensed with, uliliough forinerly neces- 
sary - - - - - - - - 81, note 

in chancery to original bill in the exchequer 80, note 
practice in New-York - - - - 83, note(l) 

See Bill. Creditors. Dc7nurrer. Plea. 
CROWN, 

suits on behalf of 7. 211 

where the attorney general to be made a defendant on be- 
half of - . - - - - - 30. 102. 172 
remedy on behalf of, in cases of nuisance and trespass 

145. 147 
See Suits. 
CUSTOM OR RIGHT, 

bill to establish - - - . - \i5, et seq. 
See Answer. 

52 



INDEX. 

D. 

DEATH 

of party, where abatement caused by - 57, et scq. 

DE BENE ESSE, 

bill for examination of witnesses - 52 and note. 150 
proceedings ujion such a bill - 49 and notes. 50 note. 60 
affidavit in support of - - - - 150 

See Demurrer. 
DEBTOR, see Creditor. Interpleader. 
DECREE 

as to review, reversal and alteration of 

83, et seq. and notes 
as to correction of former error in - . 90, note 

obtained by fraud ------ 92 

bill to set aside, see BUI. 

frame of bill for that 

purpose 94 

when altered on rehearing, and when on bill of review 

237. 239 
instance in which extended upon original bill 97, 

note 

against person having a prior estate of inheritance j as to 

its binding those in remainder - - 173, 174 

bill of revivor subsequently to - - - 69, 70 

See Assignee. Bill. Creditor. Demurrer. Infant. 

Plea. Statute of Limitations. Supplement. 

DEEDS 

rectified, or effect of controlled . . - - 129 
See Cancellation. Delivery. Deeds. Discovery. 
Eicecution. Plea. 
DEFECT IN SUIT, 

by what circumstances occasioned, 56, et seq. 67 note. 68 
how supplied - - - ' - - - 60. 68 
DEFENCE TO A BILL . - . . lo. 102 

withregnrd to the jurisdiction of the court, and the rights 
and interests of the parties - - - 11. 102 
on what it may be founded with reference to the bill 13 
forms of -------- ib. 

may be different to different parts of the bill, 13. 107 

none required to a bill of certiorari - - - 16 

DEFENDANT, 

how change of inteiest iu relation to, affects a suit 57, 

et seq. 
effect of his death or bankruptcy on suit, 57, et seq. 68, and 

note 

peculiarity in prayer, where a peer or peeress, or lord of 

purluunent, or the attorney general, is - - 38 



INDEX. 

DEFENDANT— co?i^/7m6Y7. page. 

in what manner a commoner, a peer, or lord of parliament, 

or a corporation aggregate, to onswer - - - 10 

how and to what extent, required to answer - 44, 45 

See Commillces. Corporations. Idiots. Infants. 

Inter rognJories. Jurisdiction. King, hunatics. 

Married Women. Queen. 

DELIVERY 

of deeds and writings - - - - - 128 

bill seeking such relief only need not be accompanied by 

affidavit 124 

DEMURRER 13. 10>. 100 

causes and purposes of ♦ - ^ - - 108 

effect of 14. 107 

is upon matter apparent on bill - - - 208 

truth of matters properly charged by bill admitted thereby 

211 and note. 212 

form of 210. 212 

must express the several causes of , - - 213 

must define to. what it extends - - 214 and note 

in relation to substance or frame of bill - - 20H 

on ground of defective allegations in bill - 12.5. 1G3 

speaking demurrer ^ - . 213. note (I) 

must be signed by counsel ^ - - . . 208 
where put in without oath .... ib. 

is overruled by answer or by plea - - 209. 21 1 

course of practice upon - - - - 14. 215 

what is decided upon - ^ <- 108 note. 1,54 

effect of allowing ..--.. 14 

overruling . . - - . iq 

may in some instances be allowed in part - - 214 

effect of allowing, on matter of form, and on the merits, 
with regard to a new bill - - - . 21G 

not generally permitted after demurrer overruled, 214 

note. 217 and note 

upon overruling, leave in some instances given, to put 

in another less extended - - - 214. note 

ore tenus - - - - - - - 217 

on account of smallness of amount sued for 1 1 0, and notes 
division of the subject of demurrers - - l(j9 

for want of equity - - . - . 123. 103 

to the jurisdiction - - \\\, ct seq. 123. 12.5.222 

on ground that another court has the proper jurisdiction 

12.3. 151, et seq, 

' by one under personal disability, as an infant, a married 

woman, an idiot, or a lunatic - - - 153 

for want of proper title in plaintiff 155 and note. 233 

on ground that plaintiff's title is in litigation - I57 

for want of privity between plaintiff and defendant, 

isee Creditor, and see - - 159, IGO. note 



INDEX. 

DEMURRER — continued. page. 

for want of interest in the defendant - 235 

case of arbitrator - 160 

assignee without title 

161. 163 

bankrupt 161, 162 

heir not alleged to be 

bound - 163 

-witness - 188 

for want of parties, see Parizes . . - 180 

for multifariousness, see Combination, and see, 181 and 

note 
to bill for part of a matter only to avoid multiplicity of 
suits - . . , . . . 183 

to a bill of interpleader - - - - 141, 142 

to perpetuate testimony - . 148. 156 

to examine witnesses de bene esse - 150 

to discovery, causes of . - - . - 185 

for want of jurisdiction - - ib. 

interest in plaintiff, 185. 187 

defendant, 185. 188 

privity between plaintiff and de- 
fendant - - 185. 189 
materialitj' in the discovery, 185. 
191, 192, 193 
on ground that discovery might subject de' 
fendant to penalties, as in respect of usury, maintenance, 
chanjpert}-. snuony, - - - 193, 194, 195 
to discovery, on ground that it might subject defend- 
ant - - to forfeiture of interest, 
as upon assignment of lease, without lease, 
&c. - - - - 193. 197 
to something in nature 
of forfeiture, as in regard to profession of popery : 
exception in regard to acts of trading by one declared 

bankrupt 198 

to punishment, as upon a 
criminal prosecution . . . . 194 

to consequence of a sup- 
posed crime, as in respect of forged deeds, - 196 

to imputation of moral 
turpitude ...... ib. 

to discovery, effect of waiver by plaintiff of penalty or 
forfeiture, and of agreement to make discovery, in pre^ 
venting demurrer - - . - - 195. 197 

on ground that defendant has in conscience a right 
equal to that claimed by plaintiftj as in case of a pur^ 
chaser for a valuable consideration without notice, or 

jointress 199 

for want of parties, for want of equity, or because 



INDEX. 

DRMURR'EB.— continued. page. 

a bill brought for discovery of part of a matter will not 
hold, although it seems a demurrer for multifariousness 
would lie .-.-.. 200 

to bill of supplement ----- 202 

on ground that the bill might have 
been amended, or that the new matter is immaterial 

202 and note. 207 
to bill of revivor - - - - - 201.289 

to bill of revivor and supplement - - - 206 

to cross-bill - - - - ' - 203 

for want of equity, or to the jurisdiction, will 
not lie . - - - ib. 

to a bill of review - - 203. 204, and note. 291 

against opening the enrolment accom- 
panying plea of decree - . - - 203 
on ground of lapse of time - 204 
to a bill in nature of bill of review - - 205 
to a supplemental bill in nature of a bill of review, ib. 
to bill to carry a decree into execution - - 205 
to amended bill, on ground that the new matter has 
arisen subsequently to the filing of the original bill 

207 
to relief, where it extends to discovery, 183, 184, and note 
to discovery, and not to relief, consequence thereof, 183 

note, 184 
to relief, giving the discovery - - 185, note 

may fail as to relief, yet protect from the discovery 184, 

185 
amendment of - - - - - 324, note 

See Answer. Bill. Counsel Distinction. Plea. 
Time. 
DEVISEE, See Parties. 

DISCLAIMER - - 14. 102. 106. 283. 306. 318 

form of - - - - - - - 319 

efTectof - 16.319 

no replication should be filed to - - - 319 

as to decree upon .... - ib. 

where inconsistent with answer - - 319, 320 

See Ansioer. 

DISCOVERY 8, 9. 12. 148 

bill for. See Bill. 

objects of ..-.-- 53 

form of ----- - 53, 54 

no proceedings upon, after a sufficient answer 16 
of deeds and writings, bill for ... 54 

affidavit in support of un- 
necessary - 54. 124 
right to, and grounds of - - - 9. 306, 307 



INDEX. 

DISCOVERY— conihmed. page. 

when and when not enforced. See Demurrer, and 185, 

■ et seq. 
bill of, in aid of orig-inal suit - - 186 note (3) 

of matter of scandal not enforced - - 307 

in aid of the jurisdiction of this and of other courts 110, 

note (1) 185, and note. 

of the King in council, 225 

of defendant's title, not enforced - - 189,190,191 

whether of alienage enforced - - 196,197.287 

defence in respect of, although not of relief, 107. 110 

as to necessity of disclosing that an agreement or a 

trust was by parol, with reference to the Statute of 

Frauds - - - - - - 267, 268 

as to necessity of disclosing the time when the plaintiff's 
right existed, with reference to the Statute of Limita- 
tions -.-... 269, ct seq. 
See Answer. Bankrupt. Costs. Demurrer. Plea, 
Witness. 
DISMISSION 

of bill, decree or order of, pleaded - - 238 

DISTINCriON 

between demurrer and plea - - 297 and note 

as to consequences, between an original bill, in the nature 

of a bill of revivor, and an original bill in the nature 

of a supplemental bill ^ - - - - 72 

DISTRESS 

defeated by accident - - - - - 117 

DIVORCE, suits for divorce and separation in the State of 
New- York, - - 28. note (2) 181, note (2) 

DOWER ' 120, et seq. 

DOWRESS 

plaintiff, favor shown to ^ . , 375^ note, 

E. 

ECCLESIASTICAL COURT - 250, note. 254, note. 

ELECTION, 

application that plaintiff may elect to proceed either at 

law or in equity . . . . . 250 

course of practice upon election being made, 250, and 

note 
ENGLISH BILL -..,..-. 8 

EaUlTY 

distinguished from positive law . , . . 3 

want of See Demurrer, 

See Courts. Demurrer. Plea. Remedies. 
EXAMINATION OF WITNESSES - - 323 

abroad, bill for ..,,., 149 

EJECTMENT, 

instances of relief afforded upon - - 136. 144 



INDEX. 

EXCEPTIONS PAGE- 

to answer ...... 808. 315 

form and practice upon - - 315,316 

accompanying demurrer, or plefi, where they 
constitute admission of validity of the latter, 
and where not - - - 317 

must be signed by counsel - - 315 

of infant or attorney general not allowed 315 

and note 

reference of to a master - - 316 

to master's report - - - - - - 316 

upon a plea referred - - 305 

See Master. 
EXCHEaUER AND EXCHEaUER CHAMBER, 

Courts of G, note 

EXCOMMUNICATION, see Persons, Plea. 
EXECUTION 

of another deed upon discovery of contents of one can- 
celled, bill for 124 

affidavit not required to be annexed 
thereto ... ib. 

F. 

FEME COVERTE, see Married icovmn. Persons 
FEOFFMENT 

without livery of seisin - - - - 116 

FINE, see Plea. 

effect of in various instances of legal and of equitable 

title .-----. 251 

FOREIGN COURT - - 24. note (1), 248 note. 255 

FORFEITURE, see Demurrer to discover j/, Discovery, Plea 

to discovc ry, Wo.sie. 
FORGERY, see Demurrer to discovery. 
Vl\A\j\y, sec Bill to impeach decree. Decree . 127, et seq. 

iM^gaiived by averments in plea and answer. See Plea. 
FRAUDS, Statute of, see Statute. 

G. 

GUARDIAN 

ad litem for an infant - - - - - 103 

idiot or lunatic . - - 104 

a person imbecile in mind - - ib. 

H. 

HEARING, 

relief not generally given at, if demurrer would have 

held - 108 

leave given at to file a cross-bill, 82, 83. 331 
a bill of review 223 



INDEX. 

HEARING — continued. PAGfi.- 

leave given at to file a bill in nature of bill of review, 

332 
a bill of supplement, 
326, 331 
See Amendment. Infant. Interrogatories. 
HEIR, see Aiiswer. Demurrer. Parties. Plea. 
HUSBAND, see Parties. 

I. 

IDIOTS AND LUNATICS, 

suit on behalf of---'-" *i 

by whom instituted - - 29 

defence on behalf of, to suit - - - - 103 

See Answer. Committee. Demurrer. Information. 
Persons. Plea. 
IMBECILITY, see Plaintiff. 
IMMATERIALITY, see Demurrer. 
IMPERTINENCE 

in bill ^48 

m answer 313.318 

costs, in strictness to be paid by the counsel, 48. 318 

INCUMBRANCER, see Answer. 
INFANT 

suit on behalf of ------ 25 

by whom exhibited - - ib. 

where stayed - - - 27, 28 

defence on behalf of, to a suit - - - 103 

his consent to institution of suit on his behalf unneessary 

28 
indulgence granted to in suits on behalf of, 27. 39 note. 

55 note 
by allowing amendment at hearing 

327 
where decree improperly affects 93. 

96 note 

See Answer. Costs. Dcvutrrer. Next Friend. 

Persons. Plea. Suits. 

INFORMATION - - - 7. 21. 23 and notes. 99 

on behalf of idiots and lunatics - - - - 29 

charities 100, note 

frame of 100 

and bill 23 and note. 99 

fran-e of 100 

INHERITANCE, see Decree. Parties. 

INJUNCTION 46. 134, et seq. 

in abated suit .... 57^ note (1) 

See the various subjects in this index upon which inter- 
position by, may be required. 



^ PAGE. 

Insolvency, see Defendant. Plaintiff. Plea. Parties. 

INSTRUMENTS lost, see Bonds, and - - 123, 124 

destroyed or suppressed - - - 113,114 

See Cancellation. Deeds. Deliveri/. Execution. 

INTERPLEADER, 

form of bill of 49.142 

bill of by agent 143, note 

debtor - - - - - - ib. 

tenant - - - 142 and note. 143, note 
as to affidavit and payment of money into court, and in- 
junction incase of - 49, and notes. 50 note. 143 
See Bill. Demurrer. Plea. 
iNTERROGATORIES 

in bill must, in order that answer to them may be en- 
forced, be founded on particular charges, 309, note 
for examination of witnesses, leave given at hearing to file 

329 
defendant examined upon after his plea overruled, 302 

J. y- 

JEW. See A7iswer. 

JURISDICTION OF CHANCERY, 

ordinary and extraordinary .... 1 

general ...... 6. 8. 151 

in relation to particular and inferior jurisdictions, 6. 9 

general objects of - - - - - 4, 5. IH 
where to be exercised - - - - - 111 

frame of prayer of bill where defendant out of 40, note 
when court will proceed in the absence of parties whose 

rights may be affected by the suit, 32, and notes 

in suit for a small amount - - 110, and notes 

See Cross Bill. Demurrer. Judgments. Plea. 
JOINTURE 

without power of distress - - - 115, 116 

JOINTRESS 

favor shown to 279 

See Demurrer to Discovery. 
JUDGMENTS 

of the common Law and Ecclesiastical Courts enforced 

in Equity 126, 127. 115. and note (2), 127 note (3) 



See Plea. 



K. 



KING, 

suit on behalf of - - - - - - 7. 21 

may not be instituted against - 30, 31. 103 

53 



INDEX. 

KING — continued. page. 

where to be applied to by petition of right, 31. 102 
See Croirn. Suits. 

KEEPER, LORD 7, and note 



LAW, MUNICIPAL, 

objects of ..-.--- 2 

LEGATEES, 

suit bj or on behalf of - - - - 167, 1/ 1 

decree in - - - 168 

of deceased person, no privity with debtor to his estate 

158 

See Parties. 

LETTER MISSIVE - . - - 38, and note 

LITIGATION. See Repeated. 

LOUTATIONS. See Statute. 

LIS PENDENS. See Pica. 

LORD OF PARLIAMENT. See Defendant 

LUNATICS, 

by whom suit instituted on behalf of - - 29 

defence on behalf of to a suit . - - - 103 

See Ansicer. Demurrer. Idiots. Persons. Plea. 

M. 

r^IAHOMETAN. See Answer. 
MAINTENANCE. See Demurrer to Discovery, 
MARRIAGE 

of female plaintiff causes abatement of suit - 57 

brokafr"e securities rescinded - - - 132 

SLURRIED "WOMAN, 

where she sues jointly with her husband - - 28 
separately b}' next friend - 24. 28 

her consent to the filing of a bill on her behalf, separate- 
ly from her husband, necessary - - 28 
defence by, to a suit - - - - 104, 105 
where she must, and where she need not, obtain an order 
to answer separately - - 104, 105, and notes 
where she may be compelled to put in a separate defence 

105 
See Demurrer. Next Friend. Plea. 
aL^STER, 

as to his discretion in considering exceptions with re- 
ference to materiality of the interrogatories 316, note 
See Exceptions. Plea. 
MATERIALITY. Sec Demurrer. Master 
MISTAKE --.-... 128, 129 
MODUS. See Ansu-er 



INDEX. 

MONEY, payment of into Court. See Interpleader. page. 
MORAVIAN. See Answer. 

MORTC4AC4E - - 130 

MULTIFARIOUSNESS. See Combination. Demurrer. 

Demurrer to Discover)/. 
MULTIPLICITY OF SUITS prevented - 145. 183 

See Demurrer. 

N. 

NE EXEAT REGNO 46 

NEGATIVE PLEAS 231 

NEXT FRIEND 

of infant 25, 26 and notes 

how far interested in event of suit - 27 

of married woman - . . . . 28 

See Costs. 
NEW TRIAL, 

bill for 131 

NON-CLAIM. See Plea of Fine 

NOTICE 275, 276, and note, 277, tind note, 278. 298. 302 
See Agent. Demurrer. Plea. 

NUISANCE 144 

See Crown. 

o. 

OATH 9, 10 

OFFICES, PUBLIC, 

securities for obtaining, rescinded - - -132 

OPPRESSION ik 

ORDER FOR TIME, 

what amounts to compliance with - 20S, note. 209 

See Time. 
OUTLAWRY. See Perso7ts. Plea. 

P. 

PAINS. See Demurrer to Discovert/. Plea to Discovery. 

PAPISTS 198. 286 

See Demurrer. Persons. Plea. 
PARLIAMENT, LORD OF. Sec Defendant. 
PARTIES, 

general rule - - - - - - - 163 

all persons interested should generally be 

39. 164 

admits of qualifica.tions - - 164 

where defendant out of jurisdiction - - ib. 

persons in same interest complaining are numerous, 

in which case a suit may sometimes be instituted by 

one or more on behalf of all - 166, and note, et seq. 



INDEX. 

PARTIES — continued. tage, 

where persons in same interest defending are numerous, 

in which case a suit may sometimes be brought against 

some of them as representing all, 170, and note 

upon insolvency ... - 66, note (1) 

persons claiming under others before the court need not in 

general be made parlies - - - - 175 

where persons entitled to ultimate or specific charges are 

and are not necessary parties - - 175, 175 

where persons claiming the benefit of specific charges 

upon a trust-estate, or cestui que trusts, must be 175, 

176 and note 
where persons are entitled to aliquot parts of a trust-fund 

176, note 

the first tenant in tail only a sufficient party with regard 

to the whole inheritance - - - - 173 

to suit by trustees . - . . , 174 

creditors against assets - - 171.176 

legatees .... 168, note. 171 

where personal representative a necessary party 176, 177, 

178 
person having the legal title generally a necessary party 

179 
assignor of chose in action, necessary party with assignee 

179 and note 

where the devisee and the heir, or attorney general, are 

necessary parties - - - 171, 172, 173. 176 

committee of a lunatic suing - - - 29, note (2) 

must be party to a bill against idiot or lunatic 

ib. 30, note (1) 
husband must generally be party to a bill against his wife 

ib, 
attorney or solicitor general a necessary party in respect 
to charity funds - - - 30. 102. 169 note 

where a person may be made a defendant, although not 
interested, or not in privity - - - 160, note 
dispensed with by waiver of claim against - 179 

proper, where dispensed with upon reason suggested by 

bill 180 

where a person becomes entitled during pendency of suit 

174 
demurrer for want of must show the proper parties ISO 
applies, it seems, to the whole bill, ISO, note 
See Amendment. Crovm. Demurrer. Plea. 
PARTITION .... 119,120.122,123 

PARTNERSHIP, see Answer, Pha. 
PATENT, 

as to restraining infringement of . - 138.147 

there must be a separate bill against each invader, 182, 

note 



INDEX. 

PEER, or PEERESS, see Defenda?ii. 

PENALTIES, see Demurrer to Discovery. Plea to Discove- 

very. Waste. 
PERPETUATION OF TESTIMONY, 

bill for, form of 51 

must be accompanied with affidavit - 52. 150 
See Bill. Demurrer. Plea. 
PERSONS 

incapable of exhibiting a bill by themselves alone, are in- 
fants, married women, idiots and lunatics 24 
of acting for themselves, although not bearing 
either of these characters ; by whom a suit may be insti- 
tuted on behalf of ------ 30 

by whom a suit against such persons may be defended 

103, 104 

outlawed, excommunicated, convicted of popish recusancy, 

attainted, and aliens, not incapable of exhibiting a bill 

25, note 
PETITION 

of right may be referred to the chancellor - - 3 1 

in a summary way on abuses of trusts for charitable 

purposes, authorized by stat. 52 Geo. 3, c. 101, 18. 

101, note 

relief upon, confined to cases of the abuse 

of clear trusts - 19. 101, note 

in relation to charities by the 59 Geo. 3, c. 91, 

101, note 
See Rehearing. 
PLAINTIFF, 

how a change of interest in relation to, affects a suit 57, 

et seq. 

suing in his own right effect, of his death, bankruptcy, &c, 

on the suit - - - - - 57, et seq. 65 

suing in auter droit effect of his death, bankruptcy, &c., 

on the suit - G4, 65 and note, 66, 67 and note 

instance of imbecility of mind in - - 230 note 

See Corporations. Idiots. Infants. King. Lunatics, 

Married Women. Queen. 

PLEA - - 14. 102. 105 

when the proper mode of defence - . - 218 
where necessary rather than demurrer, see Distinction, and 

216 
bill taken to be true so far as not contradicted by, 300 

nature of 219. 294 

object of 219 

effect of 14 

form of 294. 300 

must define precisely to what part of bill it extends 294. 

300 



INDEX. 

PLEA — co/Uiniied. page. 
must contain only one defence . - - 295 
must reduce so much of cause as it covers to a point ib. 
may consist of variety of circumstances - - 296 
must bring the matter which it covers to issue 298 
as to this mode of defence in case of setting up two seve- 
ral bars to same matter ----- 296 
double - - - - 268, 269 note. 295, 296 
leave in some instances given to plead double 296, note 
instances of plea not being a complete defence 297, note 
may be good in part, and bad in part - - 295 
overrules demurrer - . - . - 320 
where overruled by answer - - 240, note. 320 
to amended bill may be disproved by answer to the origi- 
nal bill 299 

after demurrer overruled - - - - - 216 

where to be signed by counsel - - 301, note 

to be filed 301 

•^ in what cases to be put in upon oath - - - ib. 

^ admitted to be true by filing replication - - 302, 303 

■^i>rh~^ where referred at once to a master - - - 305 

""^^ proceedings on ----- 15,294.301 

of setting down to be argued ... 301,305 
modes of disposing of, by the court - • - 301 

effect of allowing - - - - - 15, 301 

of overruling - - - - - - 16 

issue may be taken upon, and evidence produced upon 
facts pleaded - - - - - 15, 302 

consequence of defendant succeeding or failing in the 

proof of facts pleaded ... - 302 

effect of saving benefit of to the hearing - - 303 

ordering to stand for answer - - 303, 304 

with liberty to except 

304 

ordered to stand for answer with liberty to except, qualified 

so as to protect defedant from part of discovery sought 

304. 313 
overruled cannot be set up by a person made party by bill 

of revivor 289, note 

amendment of - - - 281 and note. 324, note 
division of subject - - - . . 219,220 
to jurisdiction - - - 219, 220, 223, e^ seg-. 

to person - - - - 219, 220. 226. 230. 234 

negative pleas - - - - - - - 231 

in bar - 219, 220. 222. 231. 234, 235, 236. 274. 280 

requisite allegations in, where founded on jurisdiction of 

an inferior court .... - 224 

to information, that jurisdiction in visitor - - 225 

of outlawry of plaintiff - - - 226. 305 

rules respecting, 226 and notes, 227 

and note 



INDEX. 

PLEA — continued. rAOB 

of excommunication of plaintiff - - - 227. 305 

rules respecting 227 and note, 

228 and note 

of plaintiff being papist recusant convict - 228. 232 

rules respecting 

228. 233 

of attainder and conviction of plaintiff - 228. 232 

rules respecting 229 
and note 

of alienage of plaintiff 229 

rules respecting - 229 and note 

of plaintiff being an infant, a married woman, an idiot or 

a lunatic -.-..- 229 

negative, in denial of plaintiff's title, as that he is not heir 

or administrator as alleged by him 230 and notes, 231 

and notes, 232, 233 

of plaintiff's bankruptcy or insolvency 232 and note 

-f - of want of privity between plaintiff and defendant - 234 

that defendant is not the person, &c. alleged - ib. 

negative, that defendant not interested 235 and note 

-■L that defendant not liable to demands of plauitiff 235 

of matters recorded, or as of record - - - 236 

of decree . - - - 236, et seq. 246. 305 

when it may be in bar of a new suit 237, et seq. 

See Dismission. 

of another suit depending 237. 246 and note, et seq. 

necessary averments in - 247 

effect of plaintiffs setting same 

down to be argued - 247 

reference to a master upon 246 

note. 247 and note. 

not put in upon oath, - 248 

course of proceeding upon 246 

note. 248 

may be good, although suits not 

between same parties 248 

may not be good where plaintiff 

sues in different rights 249 

in a creditor's suit - ib. 

at common law,or in ecclesiastical 

court, it seems, not good 250 

and note. 

of a fine and non-claim - - - - - 25 1 

where the title is legal, and 

where equitable, - 251,252 

necessary averments therein, 25 1 

and note; 253 

to a bill of review - 253 

of a recovery ib. 



INDEX. 

JPLEA — continued. paoE. 

of a judgment ...... 255 

upon a bill in respect of rights determined 
thereby .... 254 

to set it aside - - 255 
of will and probate ----- 257 

of matters in pain - - - 236, 258 

of a stated account ... - 258, 259. 263 

form of - - 259, 260 and note 

of an award - 258. 260 

of a release 258.261 

form of - ^ - 261, and note. 263 

of a legal instrument controlling or affecting the rights of 

the parties. . . . . 258. 263, et seq. 

will - - - 263 

conveyance ...... ib. 

articles of partnership . - . - . 264 

an agreement to refer to arbitration - - ib. 

of a statute, creating a bar to the plaintiff's demand, 258. 

265, et seq. 
the statute of frauds .... 258. 265 

form of - - - 265, et seq. 

in case of alleged trust - - 265 

in cases of agreements - 266 

ihe statute of limitations - - - 258. 269 

form of - - 269, et seq. 

to claim of debt - - 269 

money received to 

plaintiff's use 270 

things executory 271 

title - - ib. 

to a bill to redeem a mortgage ib. 

to a bill of revivor - - 272 

of plenarty -------- ib. 

of public, or general, or of a local or particular statute 274 
of purchase, &c. for valuable consideration without notice 

274, et seq. 
proper averments in such a plea, 275, et seq. 277 note. 298 
to a bill to perpetuate testimony - - - - 279 

for discovery of deeds - - - - ib. 

for want of parties ----- 280, ct seq. 

particular cases m which this plea may 

be avoided - - - 281 

containing negative averments supported by answer, as in 

instance of decree containing averments in denial of 

equitable circumstances charged and accompanied by 

answer in support thereof - 239. et seq. 277 note. 293 

effect of such a plea so framed and so supported - 245 

of judgment so framed and so supported - 256 



IN DEX. 

PLEA — continued. page, 

effect of stated account so framed and so supported 259 

200 

of an award so framed and so supported - 200 
of a release so framed and so supported - 202 

of statute of frauds so framed and so supported, 

268 
limitations so framed and so supported, 

271 
to discovery - - - - - - 281, e^ seq 

where plaintiff states a false case - 282 

not interested - : ib. 

defendant not interested - 282, 283 
discovery sought improper 282. 284 

that it might subject defendant to pains, pe- 
nalties or forfeitures - - 284. 286 
effect of waiver . . . . 287 

that it would betray confidence reposed in de- 
fendant, as counsel, attorney or arbitrator 

284. 288 
that defendant a purchaser for a valuable con- 
sideration without notice - - ib 
as to such a defence to the relief extending to the discovery, 

270 

to a bill for writ of certiorari - - 289 and note 

of revivor - - ... 289 

of supplement that the new matter Vvas antecedent, 

290 

cross-bill 292 

bill of review - - - - - - 291 

on ground of matter extrinsic to the de- 
cree, as lapse of time, 204, 205 and note 
supplemental bill in nature of a bill of review 293 
to a bill impeaching a decree - - - 239.293 
to carry a decree into execution - 293 

an amended bill, that the new nuitter was subsequent, 

290 
See Amendment. Answer. Averments. Demurrer. 
Distinction. Interrogatories. Time. 
PLEADING, 

former practice as to course of - - - 18.321 

PLEADINGS, 

order in which treated of - - - - - 20 

PLENARTY. See Plea. 
PKAYER 

for particular and for general relief - 37, 38, 39. 45 
special order or provisional writ - 46 and notes, 47 
See Bill. Jurisdiction. 
PREROGATIVE. See Suits. 

54 



INDEX. 

PRESERVATION pagk. 

of property pendente lite by this court - - 135 

PRIVITY. See Agent. Creditors. Demurrer. Legatees. 

Parties. Plea. 
PROBATE 

of will obtained by fraud - - - 257 and note 
in a foreign court .... - 258 
See Plea. 

PUBLIC POLICY 132 

PURCHASER. See Demurrer. Plea. - 274, et seq. 

a. 

QUAKER, see Ansicer. 

aUEEN CONSORT . . . - 23. 99. 102 

a bill may not be exhibited against her - - 30 

where to be applied to by petition - - - - 31 

aUIA TAMET BILL, - - - - - - 148 

R. 

RECORD, 

where right appears by, not necessary to establish same 
at. law - - - . - - - 147 

RECOVERY, see Plea. 

REFERENCE TO MASTER, see Master. Plea. Suits. 
REGISTER ACT (Ship,) 

observance of formality required hy, neglected, - 116 
REHEARLNG, 

petition of - - - 90 and note, 91 and note 

See Decree. 
REJOINDER .... . - 323 

special, disused ------ ib. 

leave eiven to withdraw and to rejoin de riovo, 323 note 
RELATOR, 

as to nomination of, and as to liability when named, 22, 

23 and notes. 29 and note. 99, 100 

death of, how suit affected by - - - - 100 

See Costs. 

RELIEF - - «, 9. 12 

defence in respect of, though not of, discovery 107. 110 
where legal and founded upon discovery of deeds sought by 
bill, affidavit to be armexed thereto - - 54. 124 

See Demurrer. Plea. 
RELEASE. See Plea. 

pleaded, must be upon good consideration - - 261 
as to execution of - - - 263 and note 
REMAINDER, 

tenant in remainder may appeal from a decree against 
one having a prior estate of inheritance - - 173 
Seo Decree. 



INDEX. 

REMEDIES PAGE. 

afforded in Equity with reference to such as are attaina- 
ble in Courts of Law - - - 113, et seq. 
REPEATED LITIGATION 

restrained - - - - - - - 144 

REPLICATION --.---- 321 

special, now almost disused - - 18. 322 and note 
liberty given to withdraw, and to amend bill, 322 note, 

331 note 
where allowed to be filed nunc 'pro tunc, 323. 329, 330 

See Disclaimer. Plea. 
REPRESENTATIVE, PERSONAL. See Parties. Plea 

negative. 
REVIEW, BILL OF, 

under what circumstances such a bill can and cannot be 

sustained ... - - 83 and notes, 90 

where such a bill may and may not be filed without leave 

of the court ..--.- 84 

where such leave will and will not be granted, 85, et seq. 

and notes 
rules in relation to, as to proceedings and as to time 88 
frame of -------- ib, 

affidavit necessary upon application for leave to file 84 
See Bill. Decree. Plea. Supplemental Bill. 
REVIEW, BILL IN NATURE OF BILL OF 

where the proper-course of proceeding is by - 92 

may be filed without leave of the court - - ib. 

frame of ------- ib. 

See Bill. 
REVIVOR, BILL OF, 

frame of ........ fQ 

course of proceeding upon ... 75^ 77 

practice in relation to - - - - - 77 

in New- York ... 77^ note (1) 

instances in which not necessary - - 58, et seq. 

instances in which court has acted without - 77 

where plaintiff" has no title to revive - - 289 

barred by Statute of Limitations - - - 290 

Sec Answer. Bill. Demurrer. Plea. 
REVIVOR, BILL IN NATURE OF BILL OF 

where the course of proceeding is by - - 97 

frame of ------ - ib. 

See Bill. Costs. Decree. 
RIGHT. See Custom. Record. 

s. 

SCANDAL 

in bill 48 

in answer ..,...-. 313 



INDEX. 

SCANDAL PAGE. 

nothing relevant considererl as ... ib. 

crsis in strictness to be paid by counsel - - 48. 318 

SCIRE FACIAS 

subpoena in nature of ----- 69 

SEISTENCE. See Judgment. 
SEPARATION. See Divorce. 

SK'JTLEMEISTS - 279 

SiMOiNY. See Demurrer to Discovery. 

SOLICITOR GENERAL - - 22 and note. 99. 102 

See Parties. 
SPECIFIC PERFORMANCE, ^ee Agreevient. 
STATING PART. See Bill. 
STATUTE. See Plea. 

SPEAKING DEMURRER - - - 213, note (1) 
STATUTE OF FRAUDS, 

as to eflect of insisting on, by plea or by answer, 268, 

note. 
See Agreeriient. Discovery. Trust. 
STATUTE OF LIMITATIONS, 

where it applies, and where the court is influenced by 

analogy to ii, ... 272, 273, and note. 

as to its application to a suit in equity, or to a decree 273 

See Acknoicled gment. Demurrer. Discovery. Plea. 

Revivor. 

SUBPCENA ------- 37 

to rejoin ------- 323 

SUITS 

instituted on behalf of the crown, of those who partake 

of its prerogative, and of those whose rights are under 

its particular protection - - . - 7 

by whom severallj^ instituted 21 

one on behalf of infant referred to a master to ascertain 

whether for infant's benefit - - 27 and note. 

two on behalf of infant, referred to inquire which most 

for infant's benefit . . . - . ib. 

new, how they become necessary - - - 17 

See Statute of Limitations. 

SUPPLEMENT, lilLL OF, 

cases in which filed ... 61. 63. 82 note 

objects of ....... 62 

frame of ........ j^ 

course of proceeding upon .... - ib. 

insti'.nce in which coaii proceeded without 74, note 

after decree ....... 64 

See Bill. Plea. 
SUPPLExMENT, BILL IN NATURE OF BILL OF, 

where course of proceeding is by - - - 98 

frame of -------- 99 

See Bil'- 



INDEX. 

PAGE. 

SUPPLEMENTAL BILL, IN NATURE OF BILL OF 
REVIEW, 

where course of proceeding is by ... 90 

affidavit necessary upon application for leave to file, 91 
frame of -------- ib. 

See BUI. Demurrer. -Pica. 
SURRENDER of copyhold defective - ' - . 116 
TENANT. See Copyhold. Interpleader. 
TENANT IN TAIL. See Decree. Parties. 
TERMS, OUTSTANDING, 

where setting lip of restrained ... 134 

TESTIMONY. See Bill. Perpetuation. 
TIME, 

lapse of, as to demurrer founded on, see Bill of Review 212 
to plead, answer or demur, rules in relation to 208 and 

note 
lapse of, to answer, after plea or demurrer overruled 317 
See Discovery. Statute of Limitations. 

TITHES - . - 125 

TITLE OF PLAINTIFF, 

instances in which to be established at law before equity, 
will interfere ------ 54 

as to this court's consideration of the legal or equitable, 

199 
See Ansv^er. De7iiurrer. Plea. Record. 
TRADING!, ACTS OF. See Demurrer to Discovery. 

TRESPASS 137 

See Crown. 
TRIAL. See Bill. New. 
TRUST, 

as to necessity and effect of confessing in an answer with 
reference to the setting up of the Statute of Frauds 267 
TRUST-FUND See Parties. 
TRUSTEES. See Answer. Parties, 
TRUSTS 133 

u. 

UNITED STATES 

suits by and ag linst - - - 31, note (1) 

USURY. See Demurrer to Discovery. 

V. 

VERDICT. See Judgment. 

w. 

WAIVER 

of forfeiture - 287 

of penalty -.-.-. jgg 



INDEX. 

WA STE, PAGE. 

legal . 114, 115, and note. 136, 137, 138, r9, 140 

equitable - - - - - 115, not 140 

pendente lite - ... - 136 '"^7 

penally and forfeiture in case of - - 138, 139 

ought to be waived in bill seeking to 

restrain - r - loi^ 

WILL, 

obtained by fraud - - t - r 257 

See Plea. 
WILLS, 

Courts of Equity will not decide upon their validity, 123, 

n )tes 
WITNESS 

made defendant, discovery by, not compelled - 283 
See Demurrer. JExamination. Plea. 
WRITINGS. See Deeds. Delivery. 



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